LEGAL INQUIRIES

New Zealand Herald, Volume LXXV, Issue 23034, 11 May 1938, Page 8

LEGAL INQUIRIES

QUESTIONS ANSWERED • MANY PROBLEMS SOLVED ! This column appears each Wednesday. Care will bo taken to ensure that the legal guidance is sound and accurate and as complete as possible on the facts supplied, but no responsibility is undertaken for the advice or information. Send questions to "Advocatus," care of Editor, New Zealand Herald, Auckland, and enclose name and address as guarantee of good faith. Postal box numbers are not accepted as bona fide addresses. Initials or a pseudonym must also bo

given for purposes of reference in the

column. Invest.—lf your Australian incomo is taxed in Australia, as no doubt it will bo, and you produce evidence of such taxation to the Commissioner of Taxes in Now Zealand, the Australian income is totally exempt from income tax in New Zealand. The position is somewhat more complicated in relation to employment tax. Australian employment tax is assessed on a different basis to that of New Zealand, certain investments apparently being totally exempt. You will be assessed for employment tax as though your incomo was derived from Now Zealand, but you will be given credit for any employment tax payablo in Australia. Mt. Eden.—The amount you have been ordered to pay to the mortgagee by the * Adjustment Commission cannot be deducted from your income, either for income ■ tax or employment chargo purposes, unless such payment represents interest on the mortgage and the proporty mortgaged is earning incomo. Puzzled.—The statutory provisions relating to share-milking agreements do not come into forco until August 1. If you leave before your contract expires, your employer will be entitled to damages. Ho will have to prove' actual damages, and cannot arbitrarily deduct an amount from your cheque which would exceed the actual loss he has suffered.

Denba.—At common law it was necessary that parties should take each other for husand wife in the presence of an episcopally ordained clergyman beforo the marriage would be recognised as legal. In 1563, by a decree of the Council of Trent, an endeavour was made to impose additional formalities, but these nover had any force in England. In 1753 Lord Hardwicke's Act put an end to clandestine and irregular marriages, requiring marriages to be solemnised in the parish church or public chapel of the Church of England.. This Act was superseded by tho Marriage' Act of 1823, which, subject to sundry amendments, is the basis of our present Marriage Act. At the present time different churches have different formulae, but all must contain the essential words as provided by,the Marriage Act. Puzzled.—Tho Fair Rents Act does not apply to shops and a tenancy of a shop therefore can be determined by appropriate notice to quit. If there is no agreement as to tho duration of the tenancy, ono calendar month's notice in writing is necessary. I'o increase the rent the same notice is necessary, i.e., the tenancy must be determined and a new tenancy created beforo , the rent can be increased. Taken Tn. —If the representations as to tho .takings of the business were false and were made knowingly with intention to deceive, you can not only repudiate the con- _ tract, but sue for any damages you have suffered. If the representations were in- . nocently made, your remedy is limited to - rescinding the contract. Puzzled.-r-The Pensions Amendment Act reducing the period of residence in New Zealand for persons resident at the time of the passing of the Act, namely, March 15. 3038, from 20 years to ten years, is in force, and application under that Act can be made immediately. "Worried.—Your employer has given yon ffi® , n " s "A' ls ' n °tice. Upon the expiration of that notice you are entitled to leave, and he cannot compel you to stay. He is under no obligation in the absence of a special contract to the contrary to pay tho expenses of yourself and your wife in moving back to your home. This is'so, notwithstanding the fact that your employment has been terminated through no fault of your own. Dl H? er ;T" Th ? com Plete suit was handed to c i? ners an( ? the y h »ve lost the , Tle onus , ls . on them to make »? a un a ? d ' lf ,he onl -v way of making good the loss is to give you a now suit, they must do this. In =;~ By an anienclrae "t in March a tn ,nnn, y n °w agree Wlth ''is employer lach i . b ®tween milkings given rlm a f a half-holiday, thereby reducing the statutory holidays of 28 davs snr ®K-o Um to 14. But this Act is not retrospective and, except for this provision, timo off between milkings does not count as anv ■ holiday. You will therefore have ,to give your worker the full 28 days. Taxed.—-In effect, the four brothers formed a .P&rtjiership. Ihe profits of that partnersnip cannot be treated as wages. The .tax on such profits will be payablo only by those partners entitled to the profits. Tho two younger boys are entitled to the whole profits and, as they are exempt from the employment charge, no tax will bo payable, lou will have to establish these facts to the satisfaction of the taxing department. Royalties.—lt is an infringement of copyright to perform a play or to give an item at a concert which is subject to copyright, without the consent of the owner °i ll! 0 copyright. The remedy of the owner rrn.l is an action for damages. Ihis, of course, in practice is avoided by an agreement with the owner of the copyright and paying what are known as royalties. These royalties vary according to the production. Copyright is not infringed unless there is a performance in public. But the definition of the words "in public" ln .. relation to copyright have been so widened by a recent case in England as to embrace every performance, except of a purely domestic nature. The case quoted was where a women's institute had a reading of a play or a performance before its own members exclusively, and no charge was made. It was held by the Court of Appeal in England that this constituted a performance in public, and accordingly there was an infringement of copyright. As a result of this case considerable activity has recently been shown bv agents for authors and publishers, much to the consternation of repertory and other societies of a like nature. Worried.—lf the due dale for payment of principal has passed a mortgagee can require payment of the principal, notwithstanding tho fact that interest has been paid regularly. If payment of tho principal is not made the mortgagee may exercise his remedies, which include tho sale of the property. If interest has been accepted for any period after the due date tho mortgagee must give three months' notice of his intention to call up the principal sum. In the case of a bank payment of principal is usually on demand

X.Y.Z.—For separation for three years to constitute grounds for divorce it must bo based on one of tho following grounds:— (a) Desertion; (b) mutual consent; (c) agreement or deed; and (d) by the Court. If none of these grounds are present the mere fact of separation will not constitute a ground for divorce.

J.R.—Once you have let the apartment you cannot control the use the tenants make of it merely because you are the landlord. However, if you are an adjoining occupier, and their conduct amounts to a nuisance, you can tnko action on that ground. You could, of courso, have restricted their use by agreement when you let the premises to them. If your leasu has run out ,vou will be entitled to terminate the tenancy of tho sub-tenant.

Anxious, L.H.M.—If both the man and woman of a married couple work on a farm each is entitled to the full statutory wage unless an under-rate permit is applied for and granted to one or the other. The statu-

Tory wage for adults is £2 5s a week, plus board or 17s Od a week in lieu thereof.

3 Max.—Females whose income from all sources docs not exceed £OO are exempt from employment charge. Bothered.—Under the Dors Registration Act any docs seen attacking any person, sheep or cattle or horse may bo destroyed. This Appro A/C. —It is quite simple for a company to increase its capital. All it has to do is to pass an appropriate resolution and file (he minute of such resolution with the Registrar of Companies. Tho procedure, however, in reducing capital is complicated and difficult. An application to tho Court is necessary and tno Court will require to be satisfied that all parties aro properly protected. Sinco the company has pai('. income tax on the profits which have beer, put into an appropriation account the fact that the amount, of this profit or part of it is at a later date paid to the shareholders. will not make such shareholders liable for tax. Thero is nothing to prevent you following the procedure outlined. The only cost will bo the filing of the minute with th 6 Registrar of Companies, does not extend to a dog killing poultry. A further provision enacts that any person who permits any dog known to be dangerous or to have bitten or injured any person, cattle, or oilier property to go at largo, whether with a registered collar uflixed to it or not, without being muzzled m such a manner as allows the animal to breathe and drink without, obstruction, is liable for every such offence to a fine not exceeding and any such dog so at large may be forthwith seized and killed by any constable. Section'> 7 provides that the owner of any dog shall he liable for any damages done bv it, and it shall not be necessary for the parlv seeking damages to prove any mischievous propensity. It is clear, therefore, that you have adequate remedies.

Kauri Tanhe).—Since you agreed to pay half tho removal expenses of the tenant, and the amount of rent owing to you would amount to approximately half those expenses, the best thing .vou can do is to accept tho situation and go to no further trouble in the matter. You would have no difficulty in proving tho amount of rent duo and tho onus would be on the tenant to prove the contrary agreement. Yew.—From tho rent you receive from tho house you can deduct, rates, insurance, repairs and depreciation for the purpose of arriving at the net income for tax purposes. Depreciation an a wooden building is at the rate of 3 per cent on the original cost. Ciro.—By the Fencing Act, trees may not be planted "on or alongside" a boundary without tho permission in writing of the adjoining occupier. Trees planted '-'ft away from tho boundary have been held not to bo on or alongside. Tho above does not apply to shrubs. •Lonely.—See answer to "Ciro."

Sheep.—lf you can prove actual delivery of tho rani to tho auctioneer, it is for them to account either for tho ram or the proceeds of its sale.

A.W.M. —The relationship ot master and servant does not appear to exist. "A.8." appears to bo an independent contractor. If this is so your friend will not be liable for any accident to him. But under tho AVorkcrs* Compensation Act he may be liable for any accident that occurs to anyone employed by the independent contractor. Tho cost of insurance is so low that your friend would be well advised to insure against risk or sec that tho contractor insures. R.M.—Yes.

Interested.—Where an appeal has been lodged against tho decision of an adjustment commission, such appeal can bo withdrawn with tho consent of all parties concerned. In the case of a farmer, all creditors, whether secured or not. would have to signify their consent. The reason for (his is that an appeal must be lodged within 21 days of the sealing of tho order. If • this had not been done by ono party, some other party might have done it. Interested. —Tho will states that if you "predecease" your brother your share to a nephow. By prcdecreaso is meant that you die before your brother dies. Since your brother has died and you are still alive you cannot predecease him. Your share in the estate is now vested in you to do what you like with, notwithstanding the fact that it cannot immediately be paid to you. You can assign it or leave it by will: Rating Act.—the Act you have in mind is tho Urban Farm Land Hating Act, Jo3'.!. The Act applies to farm lands which are subject to rutes levied by a borough council. A distinction is drawn between areas over and under three acres. Provision is made for a special rateable value, lo obtain tho benefits of the Act application must be made to the council itself. Anxious. —A ranger under tho Animals Protection and Game Act may in the exercise of his duties enter and pass through at all times anv land other than an enclosed garden, dwelling house or the curtilage thereof The bona fide occupier of land and any one son or daughter may take or kill on that land without licence imported or native game or may in anting t one other person in his stead to take or kiii such game. The approval of the local acclimatisation society must bo endorsed on such appointment. M P i on __r know of no legal provision whereby local tradespeople can prevent any person starting a shop in their town in competition with thcni.

Attendant.—Tho fact that you are talcing care of your elderly parent, whether such parent is eligible for the old age pension or not, docs not entitle you to niako application to the Government for any allowance.

Old \pe.—Males over 65 years or age and females over GO years of age whose income from all sources does not exceed £lO4 per annum, are entitled to apply for exemption from the employment charge and in the case of males from the levy. Females, of course, are not at any time liable for the levy.

Autumn. —Women engaged in private domestic work are not liablo for the wages tax. O.p.Q.—You are liable for tho employment charge on the amount you receive by way of superannuation. While you were contributing, you would bo paying wages tax on tho amount of your contributions, these not being allowed as a deduction. You are therefore right in saying that you are in part paying a double tax. Old Reader, Auckland.—Temporary absence in Australia for a month or two will not affect your liability to the employment charge on income other than salary or wages.

Anxious. —If your income has not altered there should be no alteration in your pension. An old ape pensioner is allowed to have up to £oOO liquid assets, which, of course, includes money in the bank, before the pension is affected. Welfare.—Workers between the ages of 20 and '_' l on agricultural, pastoral or dairy farms are entitled to 3iJs (Jd per week, plus board, or 17s Gd in lion thereof. The Child Welfare Department exercises jurisdiction over children committed to its care until they arc '2l years of age, and may require an employer to pay the wages to the department. The department then allows the child such part of the wages as it thinks fit, and accumulates the balance for the benefit of the child. There may be a reason in this cane why an underrate permit should be granted. Farmer. —The clause in the agreement means that if you sell the farm you must obtain or procure from the purchaser a contract directly with tho mortgagee that he, the purchaser, will perform all the terms of the mortgage. Apart from this direct contract, there is no contractual relationship between the purchaser of a property subject to a mortgage and the mortgagee. The mortgagee could not sue the purchaser for payment of interest or other moneys under the mortgage. The mortgagee, of course, always lias his remedy against the property. The position is different between the vendor and the purchaser. There, there is an implied covenant with the vendor that the purchaser will perform the mortgage.

Sulphur Springs.—The general rule is that the number of trustees must be kept up to at least two, except only where one trustee was appointed originally. A further general rule is that n trustee should not delegate his duties or powers to anyone else, not even a ro-trustee. "Where a trustee is unable to act or finds it inconvenient to do so, his proper course is to retire and for a new trustee to be appointed to take his place. There are sundry exceptions to this, but they do not apply in your case. A great part of the debt due by your brother for rent to the estato ..may. be statute barred by the lapse of six years. The effect of- this is to prevent recovery through the Courts. Such debt, however, can be set' off against your brother's share in the estate, notwithstanding the fact that it is statute barred. Wondering.—Tho new provisions with regard to share-milking agreements come into force on August 1, 11W.S, and apply only in those cases where tho farm owner supplies the herd A share-milking agreement continues in force notwithstanding tho bankruptcy of tho farmer, or in the case of a company its liquidation, or in the case of a partnership its dissolution. But in those cases tho share-milker's claim will be reduced to a claim for damages unless the person taking over, i.e., tho Official Assignee, liquidator or receiver, agrees to the share-milker continuing. "Wheel.—Your case has a striking similarity to what is known as the "donkey case," which is the leading case on contributory negligence. You negligently left your bicycle on the road, a motorist negligently ran over it. The motorist had the last opportunity of avoiding the accident- Tho motorist is liable in damages. Perrigrino.—lf your widowed mother's income docs not exceed £52 per annum she will be entitled to the full old age pension. If it exceeds that amount £1 f6r each £1 will bo deducted from the pension. Farmer.—You are receiving the full statutory wage, namely £2 ss, plus 17s tidier week in lieu of board. This scale of wage applies to both workers on dairy farms and on agricultural and pastoral farms, and presumably you are working on one such type of farm. Olga.—The period of residence required for old age pensioners has been reduced from 'JO years to 10 years in the caso of persons resident at the time of the passing of tho Act making this amendment. Occasional absences such as you describe will not affect the pension. The amending Act applies to persons who, being resident in New Zealand on tho passing of the amending Act, arc not. qualified to receive a pension because they have not resided continuously for 'JO years or upward. The continuous residence is not interrupted by a total period of absenco of 12 months, or where such period exceeds 12 months by further absences, provided the applicant has lived in New Zealand an extra 12 months for every additional six months' absence, and has been continuously resident in New Zealand for the 12 months before the date of the application. In your case the total absences aro four years, you are allowed one 12-month absence, leaving three years. For each six months of that three years you must have lived in New Zealand an extra 12 months over the 10 years, a total therefore of iu years' residence in New Zealand.