AN IMPORTANT CASE.

New Zealand Herald, Volume XLI, Issue 12546, 13 April 1904, Page 5

AN IMPORTANT CASE.

POWERS OF MORTGAGEES, [BY TIXKQIt.VI'H. — PRESS ASSOCIATION'.] \V km.l ngto x, Tu e s ay Aiiccmext was begun in the Court of Appeal this 'ifteruoon in the case of Hamilton v. tho Bank of Now Zealand and anothev, in which an appeal is made from a decision of the Chief Justice given in November last. The plaintiff, now tho appellant, is Mr. George Douglas Hamilton, of llawke's Bay, settler, who formerly carried on business as a former at Mangatoroto, in that district. The defendants, now respondents, are the Bank of New Zealand and the Assets Realisation Board. The appellant was the owner ot a native lease for a term of 40 years of a block of land containing 30.750 acres, and in 1889 was largely indebted to the respondent bank for advances made for working and improving the same as a sheep station. In that year the bank caused the property to he sold by auction, through the registrar of the Supreme Court at Napier, in thu exorcise of its power of sale as mortgagee, and of the powers given by tho Property Law Consolidation Act, 1883. There was, tha bank alleges, a sum of about £63,000 duo to it at that date under its securities. At the sale by auction, under the conduct of the registrar, the respondent bank bid the sum of £5000, and the property was knocked down to it for that amount, and subsequently conveyed to it by the registrar. The appellant alleges that the property was at the date of the sale worth largely in excess of £68,000, tho amount than duo under the securities, and that the purchase by the respondent bank for £5000 wits at a gross undervalue and fraudulent as against the appellant. The appellant therefore claims that (he sale should bo set aside, and accounts taken as between the mortgagor and mortgagee, and that he should bo allowed to redeem. Tho Chief Justice held that the sale had been in accordance with a practice which had been followed in New Zealand for many years; and, in fact, ever since statutory power had been given to mortgages to sell through the registrar, and buy themselves. if this long-established practice were to be disturbed, it must be by the authority of the Court of Appeal only, and not by the decision of a single judgo. His lloiioi therefore declined to disturb the sale, and gave judgment for defendants, with costs. Mr Hamilton now appeals to the Court of Appeal. The case is beiug heard by Judges Williams, Denniston, Edwards, and Cooper. Mr. W. L. Bees appears for the appellant, Dr. Findlay and Mi. 1). M. Findlay for the Bank of Now Zealand, and Mr. Traadwell for the Assets Realisation Boi.nl. Mr. Recs was stilt addressing the Court upon the facts of the oasa when ta© Court rose this afternoon.