COLLAPSE OF TUNNEL.

New Zealand Herald, Volume LXVII, Issue 20720, 13 November 1930, Page 14

COLLAPSE OF TUNNEL.

DELTA THEATRE CLAIM.

COMPENSATION AWARDED

COUNCIL TO PAY £1045. Judgment for the plaintiff was given by Mr. Justice TTorrlman yesterday in the compensation claim by Ocorgo Vincent Mullongcr as owner of the Delta Theatre, New Lynn (Mr. Johnstone and INTr. Finlay) against (lie New Lynn Borough Council (Mr. Inder anr! Mr. Metcalfe). The claim, which was for damage alleged to have been done to the theatre by the collapse of a drainage tunnel being driven under the theatre by the council, was originally for £IOOO for repairs and £540 for loss of profits, but counsel for the plaintiff agreed yesterday to reduco the latter item to £270. His Honor bad associated with him as assessors Mr. TT. Clinton Savage for the council and Mr. J. Park for the claimant.

Mr. Indcr submitted legal argument with a view to showing that as the plaintiff was not the owner of thn theatre at the time notice of tho claim was actually given tho claim was not legally valid. Counsel submitted that after the sale of a property by the mortgagee tho owner's rights were gone. Mr. Johnstone denied tho assertion that no person might claim under the Public Works At I- unless he was the owner of the land at the time the claim was made. Ilis submission was that the crucial point of time was not the time at which the ilaini was made hut the time at which the damage or injurious altection took place. Il Mr. Inder's contention were correct then no person having land taken under tho Public Works Act could make any claim because when the land was taken ho would have ceased to be the

owner. His Honor: Ho could only make liis claim before I tin land was taken. Mr. Johnstone said that showed the absurdity of the contention. If the land was taken then ho could not possibly have any interest or estate in it when he mado the claim. The land was gone before he made the claim. Mr. Johnstone's contention was that the moment, the land was taken a man had an accrued right to compensation. Mr. Inder said the answer to suggestions of cases of hardship was that any person who had suffered damage could immediately protect his rights by giving notice of his intention lo claim. His Honor said he did not think he should reserve the point. He was quite satisfied after hearing argument that the claim was within time. He interpreted the law to mean that when damage was done in the execution of a public work immediately a claim for compensation accrued and the owner had 12 months in which to tako proceedings. In cases where land was taken a period of five years was allowed. The facts of the ease were reviewed to the Court by Mr. Inder and Mr. Finlay. After an adjournment the Court awarded Mullenger £1045 compensation, including costs. The fees of each nssessor were fixed at £47 5s and each party was directed to pay its own assessor.