PROPERTY DISPUTE

Manawatu Standard, Volume LVII, Issue 231, 30 August 1937, Page 10

PROPERTY DISPUTE

SIGNING OF OPTION REPUDIATED. FURTHER EVIDENCE. WANGANUI, Aug.. 25. The dispute in connection with the sale of T. O’Neill and Sons’ property at Kakatahi for £105,000, which commenced in the Supreme Court yesterday before Mr Justice Smith, was continued to-day, when further evidence was heard for plaintiff, Clifford Ulric Plimmer, who is claiming rectification of contract and specific performance. Defendants are Timothy O’Neill, Francis Joseph O’Neill, and John O’Neill. Mr H. F. O’Leary, K.C.. Wellington, with him Mr H. E. Evans, Wellington, is conducting the case for plaintiff, and Mr P. B. Cooke, K.C., Wellington, with him Mr A. M. Ongley, Palmerston North, is appearing for Timothy O’Neill. Mr A. B. Wilson, Wanganui, is watching the interests ofF. J. and J. O’Neill.

Mr Cooke opened the ease for his client late this afternoon, and intimated that there we ye one or two grounds upon which he desired to move for a nonsuit. In the meantime, however, he asked leave of the Court to call the evidence of Dr. E. C. Barnett, Palmerston North, who attended Timothy O’Neill in hospital. At the conclusion of the medical evidence the Court adjourned until to-morrow morning.

When the case was resumed this morning William Arthur Izard, solicitor in Wanganui for defendant brothers, produced documents to show 7 how the proporty in the name of Mrs Watson and Mrs K. O’Neill belonged to the partnership. Certain moneys were due to the sisters, Miss O’Neill and Mrs Robertson, and the children of Airs Thompson. These amounts had to he taken into consideration when ascertaining the final balance of that which would come out of the sale to the partners.

Ronald John McDonald, manager of the Bank of New South Wales at Wanganui, said money had been advanced to defendant partners on current account, and the limit was £20,000. The bank held a first mortgage on the stock and a second mortgage on the freehold land. Timothy O’Neill owed £3500, which was guaranteed by his brothers Jack and Joe, and his cousin. The bank regarded the security as being very safe. Witness added that during the past year the partners had various interviews with him, as there was friction between them. SIGNING OF OPTION. While giving evidence concerning the proposed sale of the property and Timothy's signing of an option to Wright, Stephenson and Company lor £loo,ooo, witness described accompanying F. J. O'Neill to Palmerston North on February ID, the date on whicli (timothy signed. The latter was in bed at the hospital, but his intelligence and understanding were quite all right. Witness discussed with him the sale, the price, and also sheep and stock. Timothy signed the authority card first, and witness remarked it was not a very good signature.. Timothy 7 replied that he would make a better one on the option, and raised himself ior this purpose. There was absolutely no complaint from him that he did not know what he was signing. •

The formation of two companies, Okaliu, Ltd., and Whareponga, Ltd., was described by Cheviot Dillon Bell, solicitor, Wellington, whose firm drew up the option. Witness gave details of fees charged to plaintiff in connection with the. formation of these two companies and other matters concerning the sale of the property. Wright, Stephenson and Co., Ltd., received a commission of 2J per cent, on the first £IO,OOO and 11 per cent, on the balance, but an arrangement was made to the effect that if plaintiff could form the companies and exercise the option he would personally be entitled to £837 10s, which was half the commission.

Cross-examined by Mr Cooke, witness said Wright, Stephenson and Co. provided £45,000 to the account of Whareponga, Ltd., in the Bank of New South Wales at Wanganui, but did not provide the security which enabled the company to overdraw. Arrangements were made with the hank which enabled the company to overdraw to an amount not exceeding £25,000. In reply to a further question witness said plaintiff had nothing to do with Wright, Stephenson, although be was connected with a subsidiary company which did not enter into the present case. COMPANY SHAREHOLDERS.

C. D. Bell gave evidence that as far as he was aware, however, neither shareholder in Okaliu, Ltd., was connected with Wright, Stephenson and. Co. David Allan had a £IOOO share in 'Whareponga Company and the remaining £IO,OOO was subscribed for and owned by C. U. Plimmer, Ltd. The intention from the outset had been that Plimmer would interest other persons in the property and they would acquire from C. U. Plimmer, Ltd., shares in Whareponga, Ltd. The shares in the last-named company, however, were not at present paid np and calls to make the shares fully paid would be made as soon as new subscribers had been introduced. So far nothing had been called on the shares of Whareponga, Ltd. Shareholders in Okahu, Ltd., were F. 11. Smith and I. N. Plimmer, an employee and a brother of plaintiff respectively. They did not provide the money for incorporation, but witness denied that they held the shares in trust for anybody. There was no suggestion that

apart from David Allen personally, Wright, Stephenson had acquired any interest as key shareholders in either Whareponga, Ltd., or Okahu, Ltd., AVright, Stephenson, however, were prepared and willing to finance AVhareponga Ltd. AVitness said the shareholders in C. U. Plimmer, Ltd., were Plimmer and his wife. Plimmer was the directing party in the whole operation and was by far the majority shareholder in C. U. Plimmer Ltd. There was no intention of calling up shares in either company unless transferees were found.

Dr. Barnett described two operations which Timothy O’Neill had undergone for a serious complaint. Following the first operation on February 13 he suffered an unusual amount of pain. AA’itness added that injections of drugs which made him contused during the daytime were necessary. On February 19 he may have actually read the document, but witness did not consider lie was' in a state to appreciate its effect oir his position. He would know definitely that he was signing an option, but his mind was not-capable of appreciating what the details meant. Cross-examined by Mr O’Leary, witness admitted that defendant would understand he was signing an option to sell the property at £IOO.OOO. HEARING ADJOURNED. AVANGANUI. Aug. 20. After further lengthy evidence had been heard in the Supreme Court today before Mr Justice Smith, the case in which Clifford Ulric Plimmer is seeking rectification of contract and specific performance against Timothy O’Neill, Francis Joseph O’Neill, and John O’Neill, was adjourned to AVellington, where legal points will be debated.

Mr Cooke, who had moved for a nonsuit, this morning submitted that during the period of protection no action could be commenced, and having been commenced could not be continued without leave. / His Honour reserved decision bn the motion.

AVitnesses heard to-day were Timothy O’Neill, his sister, Agnes O'Neill, John O’Neill, and a cousin, Patrick O’Neill.