CASE AGAINST TRUSTEE

Northern Advocate, 15 September 1934, Page 9

CASE AGAINST TRUSTEE

RENTS OF PROPERTY APPEAL ACTION JUDGMENT OF COURT (Per Press Association.— Copyright.) WELLINGTON, This Day. The Court of Appeal gave judgment yesterday on an appeal brought by the Public Trustee against a judgment of the late Mr. Justice MacGregor at Wellington last year, in a case concerning rents 'from and management of property. The facts giving rise to appeal were that John Merry, a retired bootmaker, Wellington, had accumulated considerable bouse property in Wellington, j when in September, 1913, he was admited to a mental hospital, where he died in September, 1924. From the date of his commitment until September, 1928, the estate was managed by the Public Trustee, who then transferred it to Mrs. Alice Merry, widow, j and sole surviving beneficiary. In January, 1929, Mrs. Merry commenced an action against the Public Trustee. She alleged that the Public Trustee so unskilfully and negligently managed and controlled the real property- of the estate that large losses [were caused by reason of inadequate rentals being obtained. She claimed! £2999 damages. An order was made in October, 1932, referring to a series of questions of fact to Mr. E. Page, S.M., as a special referee. He reported in June, 1933, that in respect of three properties at Brooklyn, Kilbirnie and Houghton Bay, a prudent, skilful and diligent business man or trustee would have - obtained considerably higher rents than the Public Trustee received. Mr. Justice MacGregor gave judgment to plaintiff for £1059, plus costs and disbursements. From this the Public Trustee appealed. The Appeal Court, in a written judgment delivered by Mr. Justice Reed, varied the decision of the Supreme Court by giving judgment for the respondent, Mrs. Merry, for the deficiency in rent as found by the referee between September 3, 1913, and May 13, 1925, with compound interest at 3 per cent, and dismissing the other part of the claim, including respondent’s cross appeal. As each party had partially succeeded, the Court allowed no costs in respect of the appeal. The Court first held that the evidence supported the report of the special referee and that appellant had failed to show that the report was otherwise than a fair and impartial J finding of the evidence. The report (justified an inference of negligence on the part of appellant, but other factors [affected the question of the amount of damages recoverable. The Court then found that the right given to a landlord by the War Legislation Amendment Act 1916, to increase his tenants’ rent from an agreed rent to a standard rent had never been taken away, thus holding that the English case of Dufty v. Palmer had no application in New Zealand. The Court held that Mrs. Merry was not entitled to claim that the Public Trustee was negligent in the management of her property from the time she unreasonably refused to take it over. The appeal was accordingly allowed as to so much of the judgment as related to any period subseIquent to May 13, 1925.

With reference, however, to the period from September 3, 1913 (when the estate of John Merry was committed to the Public Trustee’s charge) to May 13, 1925, the Court said: “It is established that during that period appellant failed to obtain rentals that a prudent, skilful and diligent business man could have obtained, and he must be held liable for the difference. “It may be observed that there was also evidence that revealed a considerable degree of negligence in the administration of the Public Trust Office during, at all events, part of the period referred to, and it was admitted by officers of the department who gave evidence before Mr. Page that some of the methods adopted at that time in the management of the estate would not be tolerated at the present day.”