MERRILANDS ESTATE.

New Zealand Herald, Volume LXII, Issue 19143, 8 October 1925, Page 14

MERRILANDS ESTATE.

THE COMPANY'S APPEAL. DISMISSAL BY THE COURT. SECURITY NOT LODGED. [BY TELEGRAPH. —OWN CORRESPONDENT. ] WELLINGTON. Wednesday. Application was made in the Appeal Court on behalf of John and James Paterson and Helen Paterson, spinster/ of Auckland, for dismissal of tho appeal of Surfdale Estates. Co., Ltd., Auckland, against the judgment of Mr. Justice Reed delivered in January, On the Bench were the Chief Justice, Sir Robert Sfcout, and Justices Sim and Adams. Mr, M. Myers, K.C., with him C. A. L. Treadwell, appeared in support of the application, and Mr. J. A. Tripe appeared for the company. The grounds of the application were stated by Mr. Myers as follow: (1) That appellants failed to give security for costs and for performance of the judgment of the Court within six days of appeal as required by the Court of Appeal rules; (2) that appellants failed to set down and prosecute the appeal at the sitting of the Court, which commenced on June 29. It was contended by Mr. Myers that no security was given by the company at all, the security being only an insurance company's "cover note," and not an actual guarantee or bond. Mr. Tripe read an affidavit from the manager of the company in question to the effect that within three days of the date of the fixture of the appeal an agreement was made with the Sun Insurance Company for a guarantee sufficient to cover the costs of the action, and a letter to that effect had been forwarded to the registrar. He took refuge in the rule which stated that security should be lodged to the satisfaction of the registrar, and the fact that the registrar had accepted this guarantee was sufficient answer, in his opinion, to appellant's contention. Mr. Justice Sim remarked that the Court record showed that the security was given on August 15 and not on May 29. There was no mention of tho latter date. Mr. Tripe submitted that the affidavit filed was sufficient to show that the security was ready. If the registrar did not proceed with the matter it was not right that his client should suffer. The Chief Justice said the letter from the insurance company to the* registrar was not security, but merely an undertaking that security would be given. "I am of opinion," said His Honor, in giving oral judgment, "that no security was ever given. The appeal was lodged on May 26, when time for lodging an appeal had very nearly expired. The law provided that security must be given, not merely undertaken to be given. No security ever having been given nothing said or done afterwards was of any moment." He was, therefore, of opinion that appellants were entitled to judgment, which was entered accordingly. Mr. Justice Sim and Mr. Justice Adams concurred. An action was brought by Surfdale Estates, Limited, to obtain a declaration that John Paterson and James Paterson, commission agents, and Helen Paterson were trustees for plaintiffs in respect of £2271 5s 3d and £450 13s, commission alleged to be due. The case had its origin in the sale under.,, an agreement by defendants to the firm of Milburn and Rowllings of the property known as Merrilands. This firm employed Surfdale Estates, Ltd., as land agents, to subdivide and sell 'the sections. A considerable numbeir of sections had been sold when the defendants terminated tho agreement with Milburn and Rowllings, and resumed possession of the land. The plaintiff company, at the request of defendants, then interviewed the purchasers of sections already sold, and obtained from them new contracts with the defendants, in addition to obtaining a large number of entirely new contracts. The action was brought by the plaintiff company to recover remuneration in connection with this work. In a written judgment His Honor, Mr. Justice Reed, said the parties never arrived at an agreement as to what were to be. the full terms of the contract, and all the plaintiff company was entitled to was reasonable remuneration for the work actually done by it for the defendants. In assessing this, consideration could not legally be given to any work done on behalf of. Milburn and Rowllings, for which the £2271 was alleged to be owing, even though defendants might reap the benefit of it. In connection with the claim for £450 His Honor found that the plaintiff company was entitled to 10 per cent, on the purchase money of sections. The plaintiff company was at the end of June indebted to defendants in the sum of £348 16s Id. The total amount due to plaintiffs would only amount to £477, and in cases commission had already been deducted, and in others purchasers were unable to carry out their contracts. His Honor was satisfied that the plaintiff company had received all that it was entitled to and judgment was given for' the defendants with' costs against the plaintiff company.