Permanent link to this item
THE COURTS-TO-DAY., Issue 10475, 19 November 1897
Sn.‘RE3IE COURT-IN CHAMBERS. (Before His Honor Mr Justice ‘Williams.) Rc Margaret Hallinan, deceased (Mr Solomon'. —Motion for letters of administration.—Accordingly. fcmith v. Langmuir and another.—Summons to authorise sale of property by private contract (Mr Sira). —Accordingly. Re Ihe Southland Farmers’ Implement and Engineering Company, Limited, Pine Company, Limited, and Colonial Hardware and Woodware Company, Limited (Mr Woodhouse).— Motion for appointment of day and place to settle lists of contributories. Friday, 3rd December, at Dunedin. Rc William Henry M'Lean, deceased (Mr Milne).—Motion for probate.—Accordingly. Re Margaret Judge, deceased (Mr Mount).— Motion for letters of administration.—Accordingly. Rc Magnus Robertson, deceased (Mr A. S. Adams).—Motion for probate.—Accordingly. Rs Frederick Kiddal Monson, deceased (Mr A. S. Adams). —Motion for letters of administration —According'y. Rc Malcolm Macdonald, solicitor. Summons for taxation of costs delivered to W. S. Laidlaw.—Mr W. C. MacGregor appeared in support of motion, and Mr Haggitt to oppose,— After argument His Honor delivered judgment as follows:—If it is proved as a fact that the bill (bill of costs) is left at the place of abode of the client, whether by the postman or anybody else, is a matter of indifference. The object of the provision of the section which provides for a bill being forwarded by registered letter is that if the c ient disputes delivery this is sufficient evidence of receipt. In considering whether a bill which has been delivered for more than a year should be taxed under special circumstances one has to look at the circumstances : what took place between the parties during the time, what appeared on the face of the bill, and the amount of the bill. Certainly nothing took place between the parties that can be said to be an estoppel on Mr Laidlaw or otn ra’se any presumption against him. We have therefore to look at the other circumstance. An exp’anation of the items of the bill is diadem ] by the affidavits, I think where the bill is so small, if you seek taxation after twelve month", you ought to show something not merely in the nature of a possible overcharge, but that there is an overcharge that really amounts to a fraudulent overcharge. I do not think that appears here, Mr Macdonald was engaged to oppose this application in the Magistrate’s Court, The day before he appeared the case was withdrawn. He was engaged not only as solicitor, but as a solicitor advocate. It was certainly his business as solicitor advocate to prepare himself to go into court to argue the case. He was entitled to make some charge for that, and for any intermediate attendances that there were. He has charged three guineas. It may be a guinea too much, for all I know, or a few shillings; but I do not think that fact would justify taxation beyond twelve months. Supposing two guineas was the fee properly payable, the fact that he has charged three guineas I would hardly consider as a fraudulent overcharge. It may be that three guineas was a perfectly proper charge to make. To refer the bill to taxation would simply mean this; the total amount in dispute is three guineas ; it would involve the parties coming down to town probably at a cost of ten guineas at least, in addition to thecostswhichhavealready been piled up by the filing of these affidavits. Looking at the affidavits, I do not think a suffie'ent case has been made out to justify an order being made or the time of the Court being further taken up with what is really, at the outside, a matter of a very few shillings. The summons will be dismissed ; coats, two guineas. Rc James M'Growther, deceased (Mr Donald Reid). Motion for leave to carry on business and employ manager.—Order to carry on as prayed until the elder son attains twenty-one years or until further order; power to employ Mrs M'Growther at a remuneration not exceeding 10s a week. Bank of New Zealand and others v. Guthrie and others,—Summons that the Receiver proceed to deal with the aura of £20,000 referred to in order of September 29, 1897. Sir Robert Stout and Mr Sim appeared for the debenture-holders other .than the Bank tf New Zealand ; Mr Woodhouse appeared for Mr W. R. Cook, as official liquidator of the allied compann s; and Mr Hosking appeared for the Bank of New Zealand. Mr Woodhouse said that an order was made by Mr Justice Denniston authorising Mr Cook to pay the money referred to. Mr Cook had to go to Wellington, and whilst there he was taken ill. He had, however, made arrangements for paying the money. The money was on fixed deposit in the Bank of New Zealand, and the Bank refused leave to break the deposit, and therefore the money was not available until the end of October. The reason of the delay was that Mr Cook, on October 25, was served with a notice of appeal, and when he got that order he could not proceed to pay. He waited, naturally, for the parties interested to take some step. It was no part of his duty as receiver to apply to the Court. He waited, and this summons was taken out and served last Saturday. So fat as he know, the notice of appeal against the order authorising the payment of the money and of His Honor’s decision in the action was all the notice Mr Cook had had. Mr Sim: The notice of appeal lapsed. Mr Hosking said that this notice of appeal was servfd without any notice being given of the proceedings to the solicitors here. It was due to a misapprehension as to the true position of affairs. In consequence of the notice of appeal he was not able, when the matter was before His Honor on the last occasion, to consent in any way. It was possible that the documents before the Court might disclose some reason, as regarded one of the persons who was to receive under the order, for the notice of appeal that was given in Wellington. However, he did not know that he could do more than draw His Honor’s attention to the fact of what was contained in the affidavits before the Court. His Honor: What affidavits ? All sorts have lean filed.
Mr Hosklng: Information as to the position pi the matter is contained in those affidavits, so far as Mr Cook is concerned. I can do no more than simply leave it to the Court. I cannot go back on what 1 said, whatever the result may
, P* 3 S’ 0110 ! - • I have not seen any affidavits in this act:oi.
Mr Husking; The affidavits specially referred to are those of February last, when the contest arose. Sir Bobcrt Stout: I submit that cannot be raised now. * Mr Hosklng said that if there was any charge of misfeasance against any debenture-holder, the money receivable by that debenture-holder would go for the benefit of the debenture-holders as an asset. Suppose £I,OOO were recovered, it would an asset of the company, and would bo divisible again amongst the debentureholders. His Honor: Supposing the liquidator has a remedy against any body for a misfeasance, that would be entirely independent proceedings to bs t iken in the winding up. Mr Ho king: In the case of Guthrie and Co. there is nothing to liquidate; it all belongs to the debenture-holders. Sir Robert Stout: There are no free assets. His Honor: There are no free assets at all; it is a contest by the Bank of New Zealand. Mr Hoskipg said that the Bank suggested that if the liquidator’s report, if there was one, was produced it would be sufficient to induce the Court to stay its band. The liquidator had not reported, because, as he (Mr Hosklng) understood it, there had been no money to pay for a report. Another thing was that Mr Cook was not bound, it was not his duty, to make a report. Mr Sim: The whole object of the delay and proceedings was to keep Mr Guthrie out of his share of Ihe £20,000 _ His Honor: It is not a proceeding in the liquidation, it is a proceeding in the action, Mr Hoskicg : It is headed “ In the matter of the company.” Sir Robert Stout: All that has been said is no excuse for issuing the order. His Honor; If the Bank had wanted to impound this money for any reason whatever, on account of some misfeasance on the part of some of the parties who are entitled under the debentures, they could have taken steps to do so, and they have not. That is what it comes to. Mr"Woodhouse: They cm do so yet; there will be rafre money paid on the debentures. His Honor; Yes ; that is so.
Order made accordingly; coat?, costs in action.
THE COURTS-TO-DAY., Issue 10475, 19 November 1897
Use these buttons to limit your searches to particular dates, titles, and more.
Print, save, zoom in and more.