BOROUGH NONSUITED

Dominion, Volume 28, Issue 255, 25 July 1935, Page 13

BOROUGH NONSUITED

Rate Book Not Produced in Court Because the rate book was not presented to the court the Petone Borough Council was nonsuited in its claim tor payment of penalty on rates in the 1 etone .Magistrate's Court yesterday. The magistrate, Mr. 11. P. Lawry, remarked that when he was iu practice the first thing he did was to produce the rate book in court; otherwise there was no proof to say the rate had been struck by any competent authority. “If you produced the rate book it would show that everything was in order,” he said. Defendant was Mrs. J. J. Bourke, a resident of Lower Hutt, who was represented by Mr. R. E. Pope. Mr. W. P. Coles appeared for the borough council. In opening the case Mr. Coles, said it was being brought under the Rating Act, 1925. section 76, which provided for an additional penalty'of 10 per cent, on overdue rates. The rates in this case had all been paid, but the .penalty had not. The town clerk, Mr. H. Firth, in evidence, said the sum of £l5/16/8, representing the penalties, was still owing The rates had not been paid in the prescribed time, and he produced an advertisement which appeared in a Petone newspaper which said the penalty would be added. . . When be had finished questioning witness Mr. Coles said: “I don’t know if your Worship requires any more proof?” Mr. Pope: That is for you, surely. “It is not for me to say,” remarked the magistrate. “Before you made this claim on Mrs. Bourke I think you wrote to the first mortgagees on the property?” Mr. Pope asked the town clerk. “Yes, to Mr. Fenw’iek,” was the answer. Mr. Pope referred to a' letter, and asked the town clerk if be knew it was written to Mrs. Bourke by Fullerton, Smith and Company. ’ . “I know it was written,” was the reply Mr. Pope: I think Mrs. Bourke then came to see you?—“I admit that.” 1 think she raised the question of penalty with you?—“She did.’’ And she further asked if the arrears were paid would the penalty be remitted? —“Yes.” Witness explained that he had told Mrs. Bourke that provided the rates were paid he would be pleased to recommend the finance committee to remit the penalties, and he mentioned to her that he had little doubt the committee would do so. • ■ ... Mr. Pope: Ou that understanding the rates were paid ?—“Yes.”- ■ _ To the magistrate witness said he pux his recommendation to the committee. Mr. Pope: Was the matter referred to the finance committee? —“Yes." When, on what date?—Witness replied that he could not tell that at the moment. ■'But surely you knew this was coming up?” went on Mr. Pope. Witness said that although there was no mention of it in the minutes he did br ! ng the question before the committee. Mr. Pope: So there is no record of it? —“No.” . Counsel referred to a letter written by Mrs. Bourke and asked why it had not gone before the committee, and witness said, “You are doubting that I— —” The magistrate: Mr. Firth, it is not. for Mr. Pope to doubt anything you say; it is for me. To the magistrate witness said he thought he was right in his recollection that Mrs. Bourke’s case was'.specifically discussed by the finance committee. Counsel: What did the finance tee do—“ They turned it down.” Why ? —“Well, it was a committee matter.” “Well, T abide by the decision of the court,” said Mr. Pope, who added. “The town clerk, knowing the facts, makes a recommendation, and the finance committee turns it down 1” The reason for the committee turning the recommendation down was stated, but as it was a committee matter the magistrate instructed that the Press should not publish it. “Who were present at the committee meeting?” counsel proceeded.—“l think the only absent member was Or. Hogg. Counsel referred to a loss of £4OO on a block of fiats and asked, “Do you mean to say that is not a factor the council would consider?” “'Well, apparently they did. not, was the reply. Counsel submitted it was open to the court to consider if the committee exercised its discretion properly. To Mr. Coles witness said he had no power to remit penalties himself, and ne explained that tp Mrs. Bourke. Addressing the court, Mr.' Pope said the first point he raised was that when the rates, amounting to £l5B, were paid by Mrs. Bourke she understock the penalty would not be charged. “It may be. he said, "that an action might, have to be taken against the council for recovery ot that money.” The magistrate commented that a letter from Mrs. Bourke did not go as far as to say the rates were paid on the understanding that the penalty would be remitted. Mr. Pope contended that a woman might write a letter, but one must allow some latitude to a lay person. “It does not look as if anything was done by Mr. Firth to deceive Mrs. Bourke,” the magistrate stated. Mr. Pope claimed that the second rate demand was not in order as it was not sent to the proper address. It was a technicality, he said, but he relied ion it. 11“ submitted that evidence also should have been brought to show the rate demands were posted, and remarked that he would go to the extent of inviting the magistrate to consider the exercise of equity and good conscience. That could not be done in this case, said the magistrate. “Oh, yes, I see; I will not press that point.” said counsel, who moved for a nonsuit.

The difficulty in connection ..with the rate book then arose, and the magistrate said on that point alone he nonsuited the claim. The case, which he said was defended technically right through, could be brought again.

Alinor damage was done by an outbreak of fire at the Mellin? railway station on Tuesday evening. Flames issuing from the back of the building were noticed by a passing motorist, who summoned the fire brigade, the outbreak being extinguished before more than a few weatherboards had been damaged.