MERRY CASE ENDED

Evening Post, Volume CXVIII, Issue 65, 14 September 1934, Page 11

MERRY CASE ENDED

JUDGMENT VARIED

REFEREE'S REPORT UPHELD

REDUCTION IN 'AWARD

Lengthy litigation over a poriocl of years has reached an end as far' as New Zealand is concerned by the judg' mont of the Court of Appeal read by his Honour Mr. Justice Reed this morning in the case of Merry against the Public Trustee.

Alice Merry, a widow, of Wellington, sued, tho Public Trustee in January, 1929, claiming for deficiencies in rentals collected on an allegation that the Public Trusteo had. let certain house properties1 at inadequate rentals. In September, 1932, specific- questions wero referred to Mr. Ef Page, S.M., as special referee. Mr.. Justico ' MacGregor adopted the referee's report, and gave judgment for the plaintiff for £711 Bs.ld for deficiencies in rentals, £348 Cs Id for interest on some deficiencies over a period of years, £105, the special referee's fee, and £713 7s' 9d costs and disbursements. The item of £711 8s Id in the Supremo Court judgment for Mrs. Merry covered deficiencies in rents in one case up to September, 1927, and in two other cases up to September, 1928. Tho Court of Appeal judgment delivered this morning has tho offect of reducing the sum of £711 8s Id and tho £348 6s Id compound and simplo interest, allowing deficiencies in rents as found by tho referee botween September 3, 1913, and May 13, 1925, with interest.

No costs were allowed on tho Court of Appeal hearing for the six days, as each sido partially succeeded. The costs of the lower Court were not interfered witl). ' REFEREE'S REPORT.

"The first question to be considered is as to whether or not the evidence supports the report of the ' referee," [states the judgment. "Tho onus is ' upon tiio appellant to satiafy tills Court that it does not. We have no doubt upon the. matter. The 'appellant has altogether failed to show that tho report, is otherwise than a fair and impartial finding on tho evidence, "The referee had an immense mass of evidonee to» consider, he is skilled not only in the weighing of evidence, but has had a long experience in landlord and tenant cases involving tho consideration of fair rents. Ho personally inspected tho three properties, as well as contiguous properties ithe rentals of which wore quoted in evidence as' assisting in fixing tho rental of tho property concerned. "It was not shown that he had failed in any respect to take into consideration all relevant factors, including the question of the retention of old tenants, expenditure by tenants on the properties occupied by them, and generally every matter that would weigh ■with a reasonable and prudent man in fixing the rental of a tenement. The learned Judgo in the Court bolow after a. careful examination of the ovidonce had no doubt in tho matter and agreed with tho various findings, and we respoctfully and cordially agree with him. , ■ ■ s \ " ... It is unnecessary to set out in detail the story of the weary negotiating, extending over nearly four years through which the Public Trustoe was. unwillingly dragged by the unreasonable conduct of the respondent. ' The history eun bo summarised, as follows:The Public Trusteo wanted a statutory declaration from her as evidence that she.;.-was: the-only noxt-of'kin in the estate. "It would not have been «afo for him to hand over the "property to her without such evidonce. ...

<' By this time the Public Trustee was at -his wits' end to know how to act. He had suspected that the respondent was unfit to manage her affairs, and had mado inquiries with a view if necessary to application to the Court under the Aged and Infirm Persons Estate Act. But his inquiries disclosed the fact that she was a keen'business woman quite able to manage her own affairs. '' The Public Trustee thereupon sought the opinion of counsel as to what courso'he should pursue to end the deadlock created by her obstruction. Counsel's feo for this opinion was charged against the estate. At length on August 22, 1928, the District Public Trustee, with tho exercise of groat tact, was able to'obtain'a-personal interview with the respondent at her home; and she "was induced for the first time to listen to a proposal that the proportips should bo transferred to her. ♦'Tho result was sufficiently encouraging for him to seek a second interview with her three days later, when a further interview was arranged. This had to bo conducted by his assistant, owing to ,hia illness. These interviews showed that the respondent was quite familiar with the rentals that were being received. . . , RESPONDENT'S ACTIONS. "On receiving the accounts respondent at once objected to the charges foi1 counsel's opinion and for the perusal of documents, This created another long correspondence, during which, on Octobor 18, 1928, respondent mado a specific complaint about the management of two other properties in the estate, but no complaint about the management of the three properties of which alone she complains in this. action. Finally tho Public Trustee waived his right to those legal charges, and on October 29, 1928, respondent signed a receipt for £4743-Os lOd, the amount of .the accumulated fund. She would only sign a roeeipt without prejudice to any claim she might have against tho Public Trustee as administrator or trustee of the estate.

"In our opinion, respondent is notentitled to claim that appellant was nogligcnfr in tho management of her property from the time that she unreasonably Tefuaed to take it over. It would, in our opinion, bo inequitable to allow her after such conduct and such instructions to maintain a claim for negligent management , during that period. . "In our opinion, notwithstanding 'that a prudent trustee might have got larger rents for those properties, under the circumstances referred to the Public Trustee was not guilty of negligence in not getting more than he actually received. Secondly, in our opinion, the facts create an estoppol against the. respondent. From the middle of May, 1925, sho knew the rents being received, and that tho P,ublic Trustee wished to transfor the estate to her. .

'...■."Although" the appellant is. entitled to be relieved (iota responsibility for failure to collect adequato rents from May 13, 1925, there is no excuse for his failure in that respect during the prior period from September, 3, .1913, when the estate of the respondent's husband was committed to his charge. It is established that during that period appellant failed to obtain rentals which a prudent, skilful, and diligent business man or trustee could have obtained, and he must be held liable for tho difference.

"The judgment of the Supreme Conrt will bo varied by giving judgment for tho respondent for the deficiency in rents found by tho referee botween September 2, 1913, and May 13, 1925, with compound interest thereon at 3 per cent, and with simple interest at 4. per cent, from that date to the date ■hci'oon, mid dismissing the other part of the f-.laim."

Mr:."J. 13. Calkin, K.C., and Mr. Evans appeared for the appellant, and Mr. \V. A. Koine and Mr. J. P. floury for rc-s[«>ni'lcnt.