TIMBER LAND DISPUTE.

New Zealand Herald, Volume LIX, Issue 18223, 17 October 1922, Page 9

TIMBER LAND DISPUTE.

THE WAIMIHA APPEAL. LEGAL ARGUMENT COMMENCED[BY TELEGRAPH. —FRESS ASSOCIATION.] WELLINGTON. Monday. The Court of Appeal commenced hearing argument to-day in the case of the Waimiha Sawmilling Company (in liquids, tion) v. the Waione Timber Company. The case came before the Court- in the form of motions for judgment by both plaintiff and defendant. Tn the statement of claim- the Waimih.i Company alleged that one Howe had entered into an agreement giving it certain timber and tramway rights over a piece of land at Waimiha. Howe, later, purported to terminate the agreement because of alleged breaches by the company, and the Smpieme Court held he was entitled so to do. Howe then tooK proceedings in the Supreme Court, and obtained removal of a caveat wmch the company had lodged to protect its interest in the land. Howe then 'sold a portion to one Wilson as agent for_ the Waione Timber Company. 'ihe plaintifl alleged fraud in that Wilson had taken a transfer while litigation was still_ pending in respect to the land, he having beer given notice that the plaintiff intended to appeal from the judgment of the hupreme Court, which decided thai Howe was entitled to rescind the agreement with the Waimiha Company. 'Hnf appeal was prosecuted after Wi'son hac taken the title, and the Court of Appeal held that Howe was not entitled tc rescind the agreement, and therefore had wrongly determined it. The Waimiha Company therefore asked for a declaration that it was entitled, as against defendant, to pos | session of all lands, machinery, plant and timber cutting rights with reference [to that portion of land sold by Howe to Wilson as agent for tho Waione Com pany. The Waione Company, in its statement of defence, 'contended it was a bona fide purchaser for the value of the land, ant had become registered proprietor thereoi under the Land Transfer _ Act without notice or knowledge of any rights in plain tiff. It also denied that the transfer tc Wilson was obtained fraudulently or witl; the object of depriving the plaintiff o! its rights. Mr. Skerrett, K-C. (with him Mr. W, 1). Anderson, of Auckland), appeared foi plaintiff, and Mr. Johnston (with him Mr. J. Stanton, of Auckland) for defendant. Mr. Skerrett said the original contract between Howe and plaintiff was one o! which the Court would order specific 'performance. The Waione Company hac purchased with notice of the Waimiha Company's rights, and was in the same 1 position as was H~>we. When Howe sold property to Wilson, as agent for the Waione Company, it was known to the purchaser that the Waimiha Company claimed rights over the land and that the 6ale was entered into in order to defeat such rights by the sale and rejri6bratigr under the Land Transfer Act. If a. purchaser of land under the Land Transfei Act knew of the existence of equitable 01 unregistered beneficial interests in the land which would be defeated by the registration, of the transfer to him he would be guilty of fraud if he claimed to hold such land freed from equitable interest. Further, tho defendant knew when it bought the land that an appeal was being brought by the Waimiha Com v. and no equitable or unregistered interest could in such circumstances be -'Seated by the judgment of Mr. Justio# Sim in favour of Howe. The Court. Paid qi- P .-rett, would set aside any' sale made while litigation in respect theretc was in progress. argument ibaa not yet ooncluded.