BREACH OF BOND

Hokitika Guardian, 23 August 1939, Page 2

BREACH OF BOND

SUPREME COURT ACTION

CHRISTCHURCH, August 22

A claim for an alleged breach of a bond not to engage in a launch ferry service at Lyttelton was begun in the Supreme Court yesterday before Mr Justice Nortlicroft. The plaintiff, Lyttelton Ferry Launches, Ltd., claimed that by beginning in the ferry business before September this year, Walter Warren Toy, of Diamond Harbour, the defendant, had broken a bond, made 10 years ago, when plaintiffs had bought his launch, not to engage in the ferry service around the harbour for 10 years. They sought j as penalty, £SOO.

It was claimed for the plaintiffs, who were represented by Mr A. F. Wright, with him Mr A. N. Mackay, that the bond extended for 10 years after the plaintiffs completed the purchase of Toy’s launch, on September 4, 1929.

It, was submitted that the scope of tho bond was from September, 1929, t-;, September, 1939. On that submission it was argued that by tendering for the Lyttelton Borough Council’s contract for the service with a subsidy of £275 a year, Toy had broken his bond.

The defence, with Mr E. C. Champion as counsel, denied that there had been any such breach. The contract, it was claimed by the defence, ended iu June, 1939. Evidence called for the plaintiff included claims that the purchase price of £7OO paid for Toy’s launch, the Tui, was far more than the Tui was worth, the extra amount being paid to buy off Toy’s competition, which was very keen. Details were given of a diop in the takings of the plaintiff company since Toy had begun in active competition on the Diamond Harbour servicq at the beginning of this month. It was also alleged that Toy, long before August, liad run parties of campers and trampers across the harbour. Toy had taken delivery in April this year of the Awliina-Nui, a launch owned formerly by H. Grennell and used in the Port Levy run.

Toy had put in his tender to the Borough Council for the Diamond Harbour run in February, tho plaintiffs alleged, and it w&s argued that this tendering for the service was in itself an indirect breach of the bond. It was claimed that since Toy had begun again in the Diamond Harbour service the plaintiffs took only 5 per cent of the number of passengers, and none of the freight. The defence called evidence to show that the bond extended from June. 1929, to June, 1939, and not until September, 1939. Wages payments and a petrol account were put in as evidence that Toy had made no payments' concerned with the Tui after June, 1939. It was further claimed that as the Diamond Harbour service had been begun by Toy in. August that had been outside the scope of, the bond. The runs to Port Levy, it was argued, were completely outside the terms of the bond in any case, as Port Levy was not considered to he part of the harbour. The case is part heard, and will be continued to-day. An application by the defence for a non-suit was held over for consideration in relation to tlie other factors in the case.

COURT FINDS FOR PLAINTIFF

CHRISTCHURCH, August 23

Judgment was given by Mr Justice Nortlicroft in the Supreme Court yesterday for the plaintiff on the claim against Walter William Toy, of Diamond Harbour (Mr E. C. Champion), of £SOO, as a penalty by the Lyttelton Ferry Launches, Ltd. (Mr A. If. Wright and Mr A. N. Mackay), who alleged that the defendant had broken a bond made 10 years ago, when the plaintiffs had bought his launch, not to engage in ferry services round the ■ harbour for 10 years. The defence called evidence to show that Toy made no payments in connexion with the launch after the date the bond had been made on June 12. 1929. “There has been a series of eomoaratively unimportant breaches of the bond,” said his Honour, “but nothing from which I am entitled to infer that the work done by Toy would have gone to the plaintiffs, or as to the amount of profit they would have made The plaintiffs have suffered by the intervention of Toy in getting the Lyttelton Boroush Council contract for the Diamond Harbour Service, but it was entirely permissible because that contract did not begin until August, and T do not think the loss is attributable to the action of the defendant. Instead of awarding the penal sum, T think it is my duty to enter judgment for nominal damages to £5.”