OVERDUE RATES

New Zealand Herald, Volume LXXII, Issue 22223, 25 September 1935, Page 17

OVERDUE RATES

LOCAL BODY POWERS THE ACT INTERPRETED ANOMALY POINTED OUT An interpretation of sub-section 6 of Section 79 of the Rating Act, 1925, has been given by Mr. Justice Fair in a judgment which he issued yesterday. An originating summons to- determine certain rights of local bodies to recover overdue rates was brought by the Mount Albert Borough Council (Mr. Kogerson). Mr. Cocker appeared for the Public Trustee as representing the absentee owners of two properties against whom the council had obtained judgment, and Mr. Meek for the mortgagee of a property that had been sold up by the council. His Honor said the Mount Albert Borough Council in November, 1934, caused certain properties in the borough to be sold for arrears of rates, for which a judgment had been obtained. Upon such sale there remained a surplus after payment of the judgment, interest thereon, costs and expenses The question arising under the originating summons was whether such surplus could be applied in payment of judgments for rates due and costs recovered against the same owners, other than that pursuant to which the property was sold. The answer depended upon the construction of section 79, sub-section 6, of the Rating Act, 1925. His Honor reached the conclusion that the words "any other rate" in this sub-section bore the same meaning as they bore in the earlier Act, and must be held not to include judgments for rates and costs. He also concluded that in this context the word "encumbrance" could not be read so as to include rates. "N"o doubt," continued His Honor, "this indicates a casus omissus in the legislation, and results in the anomaly that; rates due to the same local body in respect of the same property, for which judgment has not been obtained, can be paid out of the surplus moneys realised on sale, whereas rates .for which it has obtained judgment (other than those in respect of which the land was sold), cannot be so paid. But it has been held repeatedly that such an omission cannot be cured by the Courts in construing an Act, but that it must be left to the Legislature to remedy the defect. This sub-section is the type of enactment which should not be extended beyond its natural meaning." The originating summons asked whether the words "any other rate due" in the sub-section referred to included:—(l) Rates in respect of which a judgment had been obtained, and (2) any costs included in such judgment. Hi's Honor answered both questions in the negative. The mortgagee represented by counsel was allowed £5 5s costs and disbursements, and the Public Trustee as representing two owners £lO 10s and disbursements.