MORTGAGES EXTENSION ACT

Evening Star, Issue 18851, 28 January 1925, Page 6

MORTGAGES EXTENSION ACT

SUPREME COURT JUDGMENT. FIRST CASE HEARD LOCALLY. His Honor Mr Justice Sim has given judgment in an Invercargill case under the Mortgages Final Extension Art. 1924. hearing of which took place in Dunedin prior to the holidays. It was the first rasa under the new Act to come before the Supremo Court bore. His honor stated that by an agreement, in writing, bearing date May 7, 1919, Robert’ Hugh Bisset agreed to sell to Thomas Vernon Wilkinson and Frederick Johnston Alexander certain land in Southland for the sum of £13,260 10s, of which £2,000 was paid on the execution of the agreement, and the balance of £11,260 10s wag to be paid on May 1, 1924._ 'Jhe purchasers agreed to pay interest in the meantime on the unpaid balance of the purchase money. The purchasers had not paid the balance of the purchase money or any part of it, and the vendor alleged that they had committed other breaches of the agreement, and, in particular, had failed to perform their agreement to (a) keep the farm buildings, fences, and other erections in good and tenantable repair; (b) pay lire insurance premiums; (e) farm and cultivate the land in a proper and husbaudliko manner, and keep down and destroy rabbits. The vendor hod moved for an order granting him leave to rescind the agreement, and to retake possession of the lauds comprised therein, to resell the lands in manner provided by the agreement, and to take proceedings to recover any deficiency on such re-sale, and to commence such other action or proceeding as to the court might seem fit. The first question to be determined was whether or not the court had jurisdiction to make an order granting leave to do all or any of these things. By virtue of section 4 of the Mortgages Final Extension Act, 1924, the provisions of that Act extended nnd applied, with the necessary modifications, to agreements for the sale and purchase of land made on or .before October 24, 1919, and, for the purpose of the Act, such an agreement was to be deemed to be a mortgage of the land to secure payment of the unpaid purchase money and interest thereon, and fulfilment of the conditions set forth in the agreement. A vendor’s suit for specific performance of such an agreement, being a proceeding for enforcing payment of the purchase money, came within the prohibition contained in subsection 2 of section 10 of the Act of 1924. After referring to other oases, His Honor said that to construe subsection 5 in the way suggested by counsel for the plaintiff would Be to nullify in the present case the plain language of clause (b) of subsection 2 of section 10, and to enable the vendor, notwithstanding _ the prohibition contained in that subsection, to enter into possession of the land and to resell it before March 31, 1925. That could not have been the intention of the Legislature, and the only leave that could be given to the vendor was to bring an action to obtain certain relief in connection with the breaches of agreement, other than nonpayment of purchase money, complained of by the vendor. An order was made giving leave accordingly. At the hearing Mr H. J. Macalister appeared for Bisset, and Mr J. S. Sinclair lor Wilkinson. ,