LEGAL INQUIRIES

New Zealand Herald, Volume LXXIII, Issue 22389, 8 April 1936, Page 23

LEGAL INQUIRIES

MANY PROBLEMS SOLVED Legal inquiries are answered in this column every Wednesday. Jivery care will be taken to ensure that the legal guidance given is sound and accurate and as complete as possible on the facts supplied, but it is to be understood that no responsibility is undertaken for advice or information published in this column. Questions should be addressed to "Advocatus," care of the Editor, New Zealand Herald, Auckland, and must bear the inquirer's name and address as a guarantee of good faith. Initials or a pseudonym must also be given for purposes of reference in tbe column.

Toiler.—lnterest earned on money deposited iu the Post Office Savings Bank must be taken into account in making out a declaration of income other than salary or wages for the purpose of the emergency unemployment charge.

A.C.—lf one of two partners holding equal shares takes over 'the share of his copartner in return for assuming and undertaking to pay liabilities owing by the partnership, stamp duty would be payable at the rate of lis for each £SO of half the amount of the liabilities. It is. of course, open to the Commissioner of Stamp Duties to inquire into whether or not the consideration for taking over the share is adequate, that is to say, represents the real value of the share. If it does not, he can charge stamp duty on the real value of that share.

Wee John.—Generally speaking, a division of property into two in now a subdivision. Under the Public Works Act the consent of the local authority is required. Whether or not a, special plan or survey is required depends npon the existing survey. If there is one single straight line which can be definitely fixed, the Land Transfer Office may dispense with a further survey. The consent of the mortgagee would he necessary. The cost would vary with the work involved and the value of the property transferred. Jason.—ln the absence of a specific agreement as to the nature of the tenancy, you are entitled to one calendar month's notice in writing from the date of the receipt of the notice by you. If there is an agreement, you lire bound by the terms of it. Well Loaded.—lf a mortgagor requires a release of a mortgage of land or of stock, the mortgagor is liable for the cost of the same, and not the mortgagee. The costs of the release vary with the amount secured. If the mortgage of land is registered in the L<tnd Transfer Office, 6iich mortgage remains on the title to the land until a release is registered. Similarly in the case of a mortgage of slock which is registered in the Supreme Court, such mortgage remains registered against the stock until a Memorandum of Satisfaction is filed or until five years have elapsed since the date of registration of the mortgage, when registration automatically lapses. The method to adopt is to instruct a solicitor.

A.S.R.—If you leave ycur husband without iust cause, and '"just cause" implies at least some misconduct on his part which you can prove, a magistrate will not order him to make you any allowance if he is willing and ready to support you if and so long as you live with him.

K.G.—Subject to certtun statutory condiditions which do not affect-, you, the relations between supplier and factory are based on contract or agreement. If you are dissatisfied with the way in which your cream is 'being graded, and there are no terms of any contract between you and the factory which govern the position, then your only remedy is to change your factory. The regulations under the Dairy Industry Act forbid transferring supply from one factory to another during the seasoi. The season in the North Island is from August 1 to May 31. If a factory refuses to accept a supply, the supplier can change. If your cream is actually first grade, and they refuse to accept it as first grade, this would probably amount to a refusal, allowing you to transfer your supply elsewhere.

Inquirer.— By section (5 of "The Land and Income Tax Amendment Act, 1935," the income defined by sub-heading (ii) which is set out hereunder is exempted from income tax:—(ii) "In the case of any such company having for its object or one of its objects the sale of milk supplied to the company by its shareholders if and so far only as the rules of the company provide that its income shall be distributed solely amongst the of milk in proportion to the quantity of milk supplied by them." You not being a supplier, the income paid to you is not exempted, and the company therefore properly deducts from dividends payable to you income tax payable by the company. Apparently that part of. the income of the co-operative dairy company you mention which is not covered by the above exemption is very large, as the amount of tax deducted is at a rate approaching the maximum.

Anxious.—lt is presumed that the 30 years you have been in New Zealand are 30 consecutive years, in which case you would be entitled to apply for the old age pension, the residential qualification being 25 years' residence, which is not considered as being broken by absences not exceeding in all two years. Certain deductions would be made in respect of your income and property. £1 for every £1 of income in excess of £52 will be deducted, making a deduction of £ll. £1 for every £lO worth of property in excess of £SO will be deducted, making a further deduction of £2O if the Pensions Department take into consideration the full value of your mortgage. The full pension is £45 10s per annum, and you would apparently be entitled to £l4 10s per. annum by way of pension.

Rosemary.—Where a husband and wife have entered into a separation agreement, no action can be taken for divorce before the expiration of three years, except on the grounds of adultery. It is impossible to advise you whether the letter you mention can be used in evidence, since you do not state the contents of it.

Inquirer.—You would appear to have a claim for damages under the Workers Compensation Act for injuries to your lesr. since the accident occurred while you were on your way to the milking shed. You are under no obligation to find labour in substitution for your own while suffering from the injury.

Worried.—(l) Your order given on your cream cheque to the State Advances for valuable consideration can be transferred to the Mortgage Corporation without furtheir signature by you. (2) This depends upon the terms of the order. If it is a straight out order to collect a percentage of your dniry cheque, the mortgagee can retain the full percentage, applying it first in reduction of interest and secondly in Teduction of principal. (3) You cannot cancel an order gik'en for valuable consideration.

I'm Rattled.—lf the County Council obtained judgment against you they may by appropriate proceedings petition for your bankruptcy. If the amount of the judgment including costs does not exceed £3O you cannot be made bankrupt.

y.S.—Your liability to the owner of the stallion depends entirely on the arrangement that you enme to.

H.A.—The storekeeper who Tented your premises and traded under a trade name is entitled to use that trade name when he leaves your store and sets up business in another part of the town. You are not entitled to use the trade name, nor to Rive permission ti> any other person to use it if it is likely to lead to confusion, and cause actual damage to your original tenant.

U.S.A.—Under The Motor Vehicles Act it is the duty of any person selling a car to notify the deputy-registrar of motor vehicles of the sale, the nume of the newowner, and to forward the certificate of registration of the motor vehicle and the current annunl licence thereof. now owner on payment of a fee of 5s is entitled to the endorsed certificate and the licence, and may not use the car until he receives the same. From this it would appear that the onus is on the purchaser to pay the fee. . Rook.—The Pensions Department, will in the first instance treat the amount of £•(58 which you will be receiving as income fot the current pension year. You and your wife are entitled, however, to have the sum of £143 per Ninclusive of any pension payable to either of you, and unless the amount of i.iiß brings the income of yourself and your wife (including any pension) to an amoijnl in excess of £143 your pension will not be affected. In the second instance, any balance of the sum not spent in subsequent years will be treated as accumulated properly It is unlikely that this will in any way afffct your wife's application for pension or your own pension materially.

A.V.S.—If the two executors of your mother's estate renounce probate and consent to administration by you, you can apply to the Court for letters of administration with will annexed, and this is the simplest method of dealing with the property. The services of a solicitor are necessary. lielief.—The relief worker is entitled to one calendar month's notice in writing. The notice you have given is ineffective, and can be disregarded by the relief worker. If you give a proper notice and the house is not vacated, you can by the appropriate Court proceedings get an order for possession. If the rent it in arrear you can sua for po«ae«sion.

Anti-Vampire.—The question of alimony j grunted to a wife after a decree of divoroo luis been made übsolute is a matter entiiely withm the discretion of the Judge hearing the application, but the fact that the divorce is the result of separation by mutual consent, and that a wife is herself putting an end to the marital tie by taking divorce proceedings is something that the Court will take into consideration. They will also take into consideration the wife's health and circum stances, and they will in general (and even if this is not done there is statutory provision) reserve leave to the husband or wife to apply at any time to have nil order varied, and a subsequent mar riage would be a very good ground for a husband to make application to the Court to cancel the order. In the circumstances you relate there is quite a distinct possibility that no order would be made in favour of the wife. W.H.—lt would appear from your inquiry that the tenancy of the house was part of the terms of employment, and consequently when the employment was properly terminated the tenancy also was properly terminated. Anticipation.—The old age pension is reduced by £1 for every £1 over £52 income. Income may include an allowance up to £26 per annum for board and lodging "Worried.—lf the mortgagee resumes the property in which you live, this will not affect your pension. If your mortgage was in existence on or before April 17, 1931, you are entitled to a month's notice before the mortgagee can exercise his remedy. Within that month you can apply for relief. You do not, however, need to wait until the mortgagee moves, you can apply for relief immediately. Fair Play.—The position depends to some degree on the terms of the order given by you on your cream cheque. In the usual form of order there is a provision that the Discharged Soldiers' Settlement, branch allocate the percentage receivable by them at their discretion. The practice of the branch where the mortgage secures current account is to first pay the percentage received into principal account, but not to allocate it to the principal, and every half-year the amounts so received are allocated out of the principal account to rent and interest accounts: interest is calculated from day to day, and if there is any surplus over and above rent and interest the same is applied in reduction of principal, and the settler gels the benefit of such reduction as from the date when the moneys were first paid into the principal account. If the percentage received is not sufficient to meet both rent and interest, the department can apply the moneys received at its discretion, and if the rent is not paid in full, you would not be entitled to a rebate. This discretionary power might, however, be qualiied by the order given by you. It is extremely improbable that the department would allocate the money in reduction of principal, and leave rent and interest outstanding—you must be under a misapprehension in this regard. Punga.—To entitle a worker to recover compensation for injury by accident, such accident must have arisen out of and in the course of the worker's employment. The question of whether an accident, occuring to a worker on his way to or from th 3 place of his employment, is an accident arising "out of and in the course" of such worker's employment has been the subject of much litigation, but the weight of authority seems to be against the contention that a worker suffering injury on the way to work is entitled to recover compensation. It has been held thnt, where a worker is being conveyed to wo.rk by his employer merely as a convenience to the worker, and not under any contract duty or obligation on the part of the employer, (lie employment cannot be treated as being thereby extended so as to cover an accident which occurs during the course of the transit, and the worker is not entitled to recover compensation in respect of an accident occurring during such transit. The position in the case you quote, therefor* depends upon whether there was a contractual duty or obligation on the part of the council to provide a truck for transit. If such a duty existed, it is probabJe that an accident occurring during transit would be deemed to be an accident arising out of and in the course of the employment. and any worker thus injured would be entitled to claim compensation from his employer, in this case, apparently, the County Council. Storage.—The position will depend upon whether you have a lien on the article. This again will depend upon the nature of the business you carry on. the reason for the article being left with you, and the terms of the contract, and whether you have done any work on the article. Apart, however, from lien, if you have charges against the owner who cannot be traced, and you sell the article for its full value, the only action that the owner could bring against you ivould be for damages, and against damages you could set off the amount he owes you, that is to say, if the sale was at the real value of the article, you could deduct your charges and hold the balance in trust for the owner, who would not be able to recover more than that amount. Annoyed.—lf there is an award governing the position, the terms of the same will deal with the matter of payment for holidays. If there is no award, it is a matter of contract, but in this latter case the amount of'wdges seem to have been received without question, and it is now too late to raise it. Worried.—Since the income of yourself and your husband amounts to more than £143 per annum, j'O'i are not entitled to any pension. D.S.S.A.—The County Council can issue a summons against you for recovery of the two years' rates unpaid. If they obtain a judgment against you, they can, on following the procedure laid clown by the Rating Act, proceed to sell the property in respect of which the rates are owing. As a general rule, -rates take priority over mortgages, and a first mortgagee is liable for rates outstanding, but there is an exception to this rule, the Crown not being liable for rates and outstanding rates not taking priority over a mortgage to the Crown. This exception includes the Mortgage Corporation. In your case, therefore, the council would have to sell the land subject to the mortgages to the Mortgage Corporation and the Lands Department. The County Council, of course, have no right of action against the stock. They are probably threatening to sue you on account of the fact that they cannot enforce a claim for rates for more than ihree years back in a Court. If you could manage to pay the rates due for the year owing furthest back, they would probably agree to withhold proceedings.