COURT OF REVIEW

Evening Post, Issue 29, 4 February 1935, Page 13

COURT OF REVIEW

IMPORTANT DUTIES

THE RIGHT OF APPEAL

"The "pamphlet describes a special .'Court of Review.' This special Court of Eeview will have wide powers and most important functions. The chair r man should/be one fitted by training and experience to discharge judicial duties, and should be possessed of the very highest qualifications. The work of this Court will be so onerous, and the possibility of miscarriage of justice will be so great, .that the committee suggests there should be some right of appeal from the decisions of this Court. . ;

The committee was assured that the Government would have no objection to the principle of appeal if the necessary machinery were devised. Not only is, the committee convinced that a right of appeal can easily be provided, but it is fully convinced that such right is absolutely essential to prevent grave injustice. The committee strongly urges that this' legislation, if enacted, should make full provision for appeal from the Court .of Review to the Court of Appeal. The only satisfactory appellate tribunal that can ensure uniformity and secure public confidence is our existing Court of Appeal. POWERS OP COURT. "Mir. Coates's pamphlet states:— 'The Court will have power to refuse a stay order in certain cases.' The committee urges that this provision should not be permissive, but should be absolutely. mandatory. A stay, order should never, jn any circumstances, be allowed Vrhere the position of a farmer is hopeless, or where a farmer is incompetent or of doubtful character, or whose relations with existing mortgagees . have not. been1 straightforward and'honourable. There should be the^most specific rules laid down lor" the guidance of the Court in this matter. Public interest, as well as the interest of mortgagees, demands that-mortgagors disqualified as mentioned above should be definitely excluded from any benefits under the legislation. "The committee dislikes the principle of setting up a Court without at the same-time prescribing a definite code of rules under which it is to operate. . INJUSTICE TO MORTGAGEES. "This legislation in the foiia now proposed must result in grave injustice to maiiy small private mortgagees who are depending for their subsistence on income .from mortgage investments. The committee urges that the legislation should authorise the 'Court of Review,' when investigating the affairs of a mortgagor, to investigate a plea of hardship by the mortgagee, and if it considers it equitable, to make ah order accordingly. "Mr. Coates, in his pamphlet states: 'The ideal method of settlement of a mortgagor's, difficulties is a voluntary arrangement between the parties concerned without any intervention at all, and' every encouragement should be given to the making of such arrangements.'

"The committee urges most strongly that- it should be mandatory updn the 'Court of Review' when considering any case brought before it, to have regard to any modification of the original contract which has since January. 1, 1930, been entered into by the mortgagor and mortgagee by mutual arrangement, and that it should be permitted to disturb such modified contract only if it be clearly shown to be inequitable. Unless some such provision is made, \ the legislation, if enacted, instead of encouraging voluntary arrangements between mortgagors and mortgagees, may only tend to upset existing voluntary arrangements. STAY ORDERS. "In the opinion of the committee the provisions vas outlined in Mr. Coates's pamphlet are unnecessarily complicated. It was apparently felt by the Minister that a period of five years was not long enough to furnish a 'Court of Review' with sufficient evidence to enable it to effect a satisfactory settlement. The committee has already indicated its unqualified condemnation of the proposal to present an arbitrary equity la his'pro-

perty to a mortgagor at the expense .of his mortgagee* If, however, the Legislature determines to adopt this grossly unfair proposal, the committee urges that the period be extended to eight years, the settlement then decreed, to be final-as regards. . both parties. This suggestion of an eightyear period eliminates the particularly objectionable proposal that the mortgagor should get 50 per cent, of the additional value accruing in the second period.' SUPERVISORY PERIOD. ' "The pamphlet is silent on the question of what is to happen if the mortgagor effects a sale of the mortgaged property during the period of supervision. The rehabilitation proposals are based on the assumption that it is in the . best interests. of the. community that the farmer should be kept on his farm. >If of his own accord he disposes of the property during the period a 'stay order' is in force, then it is the considered opinion of Ihe committee that the stay order should cease 'to operate, and the ordinary, processes of law should be allowed to'take their course. The farmer, in such case, should be permitted to take -only the surplus left after all his creditors have been paid in full. . It may be noted incidentally that a provision of this nature would.place a brake on land transfers and discourage'any tendency, ■towards land speculation."