SALE OF METAL

Dominion, Volume 33, Issue 280, 21 August 1940, Page 12

SALE OF METAL

£5Ol Claim For Alleged Negligence

A. claim for £5Ol was brought in the Supreme Court. Wellington, yesterday by Nelson Bros., Ltd., merchants. Wellington, against Pilchard Henry Nagle, public accountant, Wellington. The ease was heard by the Chief .1 lattice (Sir Michael Myers). Mr. 11. F. O’Leary, with him Mr. G. 11. M. Moir, appeared for plaintiff and Mr. G. G. G. Watson, with him Mr. M. H. Vander, for defendant.

The statement of claim set out that defendant is a public accountant, and a director of Kigali Securities, Lid., a Wellington company, having among its Objects 'the lending of money. On December 2-1, .1936, plaintiff company executed in favour of Klgau Securities, Ltd., a debenture charging all its property and assets with the moneys secured by the debenture. On June 20. 1937, Kigali Securities, pursuant to its powers under the debenture, appointed Frank Herdman, registered accountant, Wellington, to be receiver and manager of all property charged by the debenture. On .lune 25 r 1937, Herdman entered possession as ‘receiver . and manager of the property of plain tiff charged by the debenture. On July 2, 1937. Klgirr Securities, Ltd., revoked the appointment of Herdman as receiver and manager and appointed Herdman and defendant to be receivers and managers of Hie property charged by the debenture. On September 30, W’JS, Hlgan Securities. Ltd., revoked Hie apiwiutment of defendant and Herdman as receivers and managers and appointed defendant to be receiver and manager. By virtue of the conditions of the debenture, it was claimed, Hie receiver and manager appointed thereunder became agent of plaintill’. Defendant, as receiver and .manager, sold to Jenkins and Mack, Ltd., and to the Jones Metal Co., Ltd., various quantities of copper steel ami copper, tube, the property of plaintiff. In making such sales, it was alleged, defendant acted negligently, and in breach of his duty as agent of plaintiff in that he did’ not secure on such sales the market price that he could have and should have obtained for same, and as a result of such negligence and breach of duty ‘Plaintiff suffered a loss of £5Ol, which plaintiff claimed from defendant, with the costs of the action. The statement of defence admitted that Klgau Securities. Ltd., pursuant to its powers under Hie debenture appointed in writing Frank Herdman. Wellington, to‘be receiver and manager of all property of plaintiff charged by the debenture, such appointment being •made on June 26, 1937. It was admitted that Herdman entered into possession as receiver, such entry being made on June 28, 1937. The other allegations in the statement of claim were denied.

Evidence for plaintiff company was given by Jack Nelson, merchant, a director of Nelson Bros., Ltd.; Jack Nelson, jttn., an officer in the Royal Air Force; T. R. McLaughlin, contracting plumlKir; and Leslie Roland Blake, manager of the hardware department of J. Nathan and Co., Ltd.. Wellington. Case for Defence.

Opening the case for the defence, Air. Watson said Ute allegation was that of selling copper below market price, and, secondly, of negligently selling it below market price. Plaintiff had failed to prove that at rhe dates mentioned there was any market price for sheet or tube copper in New Zealand. All that they had proved was that Nathan s had sold certain goods at certain prices. It might be that Nathan’s were better salesmen than others. It could not be .held that 'because Nathan's had obtained 'better prices than defendant that they had been negligent. The onus of proving negligence lay with plaintill and no evidence had been adduced to support this allegation. In this ease, though it was a realization of stock, there had -been no loss whatever. The total realization had only been equal to pay back the capital advanced by Elgan Securities, Ltd., and a small portion of the interest arranged under The debenture.

The hearing of the ease will lie re sumed at 10 a.m. today.