NOT ENFORCED

Evening Post, Volume CXIII, Issue 137, 14 June 1927, Page 14

NOT ENFORCED

SALE OF TROCADERO

'£ DISPUTED STORY

The Supreme Court action over the sale of the Trocadero Hotel for £40 - 000 was concluded before his Honour Mr. Justice Alpers yesterday afternoon, when a declaration was made that the contract had been validly rescinded. The facts were that Kobert Duncan Benjamin, a contractor, of Christchurch, agreed to purchase the Trocadero, and he said that the building was represented to him as having five stories. He later found that there were only four stories. The . fifth, or disputed story, he said, consisted of about twenty or thirty rooms on portion of the roof of the hotel, and it was on account of that, and also on the ground that there was not available the area of lettable floor space that had been represented, that he urged he was entitled to rescind the contract. He claimed that what: he had been told was lettable floor I space was partly the uncovered roof of the hotel. The plaintiffs were the Public Trustee (as sole executor under the will of Hamilton Gilmor, of Wellington, and as executor and trustee under the will of Allen Maguire, deceased, contractor, the Hon. Sir C. P. Skerrett, Chief Justice of New Zealand, and Mary Ann M'Ardle and John O'Kane, executors and trustees under the will of Owen M'Ardle. _ In giving judgment, his Honour said it was an extraordinary case in some respects. There was the fact that a gentleman was willing to buy a £40,----000 property, and had stayed next door to it for four or five days without inspecting it. However, his Honour said that that might be explained by the fact that when he was in "Wellington Benjamin was not sufficiently interested in the property, to inspect it. When he returned to Christchurch ho commenced negotiations by correspondence, but he did not.think it worth whilo running up to Wellington to inspect it before he closed. The fact that he (lid not inspect would have to be regarded in some sense as a compliment to the agent, Hunt, who impressed Benjamin, as he did the Court, as being a fair and candid man. His Honour said he would accept Benjamin's statement, that he was induced to purchase the hotel by the memo relating to area of floor space that was made by the agent. The whole case went back to the question as to what was the proper construction to- place on the memo. His Honpur said he thought the hotel was a building with five stories, but he would still retain his disinclination to call it a five-story building without qualification. To his Honour a fivestory building meant a building in which there wero 'five stories, one on top of the other, and substantially equal in area. Floor space lettablo, as described in the document, meant floor space roofed in. If that was so, there was a misrepresentation, quite innocent, but a misrepresentation. If the defence did not succeed on the ground of misrepresentation, it, would succeed on the alternative ground of mistake. He was inclined to think that there was a mutual mistake. He thought the plain- | tiffs failed in their prayer for a decree for specific performance, and ho 1 thought that the defendant was entitled to what he asked for. ' His Honour made an order that the contract was vadidly rescinded, and allowed costs as on a claim for £501, with fifteen guineas a day for each o:E two extra days. . Mr. A. W. Blair, appeared for the plaintiffs, and Mr. W. J. Sim, of Christchurch, for the defendant.