THE HAMILTON CASE AGAIN

New Zealand Times, Volume XXXII, Issue 7264, 21 October 1910, Page 1

THE HAMILTON CASE AGAIN

< ■ POSITION OF THE BANK KEPLY TO Mlt HOGG'S RECENT LETTEiv. SOME JUDICIAL FINDINGS. (To the Editor, "X.Z. Times.") Sir,—ln youi" issue of 17th inhtarit Mr \. VV. Hogg. M.l'., replies to my letter of "tli idem on the subject of the Hamilton CiIHP. Mr Hogg traverses my defence of tho bank, and in a plausible manner endeavours todispone of it, and consequently. to justify the unfair comments made in the lluuso of Representatives to which. I took such strong exception. Mr Hogg says I do not appear to challenge- tho accuracy of tho committee's report. To this I reply that 1 have not: ynfc seen tho committee's report, n.nd have not challenged anything,' but tho conclusions they a.ro reported to havo arrived at. My concern is with tho reputation of tho bank, and 1 could not permit tho bauk'« clients generally to be left under a false and damaging impression in, reyard to its treatment of one of its customers. It was principally on this ground that I felt called upon to intervene and sire publicity to the facta from, the bank's standpoint. All I know of tho committee's report lias been gathered from tho pross summariea, which stated, tho committee's rccomnieudutiou as follows : That the petitioner through the Heizure by and the sale of his property to Uua bank at a mere fraction of its value, ana the suhdctpieut validation of tliat transaction o.v tno INow Zealand iiauk Act, 1861. Amendment, Act, * lbtiV, Ir.w yullered a serious wrong, and it recommends his claim for redress to the tavonraoio consideration of lu (Jovornment. Assuming this to be a correct statement of tho committee's conclusions, 1 am bound, in the interests of -both the bank and tho State, to impugn them, and 1 do so most distinctly. I.havo no desire,or intention to ask you to allow mo to continue) a correspondence with Mr Hogg through the mem urn of your column's, but—the matter lieing of some public interest and importance, I would like to be permitted to tresp-ass V.pon your space once inoro for the pur- ' poso of dealing with tho points raised by . ETHosb. i Exception, it, taken to my remark that t Captain Hamiiton was not dealt -with : in a harsh or precipitate manner by tho j bank, and tho»text of the demand made , upon him on June 17th, 1884, is quoted t as furnishing a refutation of my claim = that Hamilton, was treated by the bank ] with fair and proper consideration. As ! to this, I need ouly'suy that tho demand | was a legal document, made for legal ; purposes, and framed in such language. ■ as to effect those purposes; and I havo \ only to point to the course of events following, i.e.. (luring the five years that \ elapsed between the date of the demand and the date of tho sale, in order to f establish my ca.se. 1 suminariflo these ; from the judgment of'his Honor'the ] Chief Justice, delivered on November i 17th, 1903. a. s follows-. 1 Juno 17th, 1384—Formal demand mado for ] £44,904 3a. i November 21st. 1834.—Four months' further time allowed on application of Hamilton's solicitor, who stated ho would then be in . ti position to pay off the bank. May. 1885.—Action threatened by Hamil- ] ton's creditors, and bank informed Ham- t ilton it might be forced to soil tho lanrt. . April 20th, 1886.—0 n Hamilton'3 applica- ' tion bank agreed to postpone tho sale for six months. 1 December 30th, 18S6—Hamilton appointed I manager of the estate, without prejudice to 1 the power of the bank at any time to ex- i ercise its power of sale. t 1887 or 1683.—Hamilton'3 solicitor visited c England, hoping to obtain a loan for Ham- i ilton's requirement*. J January, 1888.—Property advertised for 1 sale, with Hamilton's consent. 1 Negotiations for raising £40,000 which 1 bank was prepared to permit on certain conditions. ' Endeavour made to get a company to finance the business. 1 February 6th. 1889.—Application made for ] «ale through Registrar. Further fruitless t negotiations. Ifarch 25th. 1889.—Sale through Itegistrar; property bought in by bank at £SOOO. ' . Tho above will. I think, satisfy most Teasonably-minded people that every con- , - federation -was extended to Captain Hamilton and every facility afforded him to redeem his property from the bank. jj Captain Hamilton, on tho other hand, i cannot be said to have displayed corre- c , spending consideration for the interefite * of the bank. At one time lie was doing r his utmost to increase the bank's diffi- ) cutties and expenses in dealing with the '■ property. Mr Jnstiee Denniafon, in the 1 coiiTse of his judgment, remarks : < He (Hamilton) waa then (In Jnly. 1891) en- ? gaged in throwing his weight, his influence, ' and his information on the side of the r natives who were endeavouring to npset v the title of the bank to the propertv, on t the faith of which title the bank had advanced its money to nim. Mr Hogg reiterates that the bank paid ] only X.VIWI for the Mangatoro estate. My r letter of the 7th. inst. mado it quite clear s that the estate cost the bank .£68.000. , The .£51)00 was the bank's bid at auction, e nnd was tho only bid mado. It was open „ to Captain Hamilton and his friends to j, have entered into competition with the f bank at the auction and to have run up the price to whatever figure they con- r °idered the property worth. That they J did not do so indicates that they recog- s niscd it would be. a useless proceeding, t and that they regarded tho debt to the u bank as boin™- in excess of the value of the property. This is brought out clearly f, in the judgment of the Court of Appeal, t which recites Hamilton's own evidence, p T quote from his Honor Mr Justice Edwards's judgment, entirely concurred in by tho other Judges of Appeal: A mortgaged property rarelv, if ever ■?pmeji into the market under a. sale thronirh ? (he Registrar unloss the security is tipfl- * ?ienfc and the mortgagor insolvent. The °i present is in that respect a typical case. J Tho plaintiff owned the panitv of redemp- c •tion in properties of very large value, hut tho titles were defective, or. if not defective, were own to doubt, as all transac- o tions with Natives are, more or less. .The le defendant bank appears pot to have been Pi /ndisnosert to' deal with the plaintiff for ti re-sale of the property after tho sale tl throuprh the Registrar, and he seems to a: havo made some tentat-ivo proposals to ol that end. These came to nothlnir. Tho tl plaintiff says himself: "The real difficulty ol was the nature of the leasehold. 7 knew fr that Jfaata was contesting the validity of i' the lease, and was refnsinir to accept rent, c: has not since accepted rent. Maata ai was one of the principal persons interested ai in this land. T do not. know that it was in well known in Napier the conditions under hi

f which I had the lease. If I had been asked I by any probable purchaser, I would have 1 told him. T have no doubt that Hoadley's L application for a guarantee of title was due to rumoured defects in the lcafic. I say that a man would not have been found to buy the property, including the- stock, t Tor £60,000. It waa a lanyc sura, and it was ; 'Uiicult to find that sum at once. Very few i people had the cash to pat down foe- such a purpose." The plaintiff's debt to the defendant ; bank Tvng over £63.000. According to his \ own evidence, therefore, upon the best re- ;. nlisation that could have been hoped thero 1 was deficiency in the value of the security of from £BOOO to £IO,OOO. The defendant bank was clearly entitled to realise its security at once. 1 If tho defendant bank had bid £60.000 for ; tho mortgaged property it wonid have had to pay £450 in stamp dnty, and tho officers of the bank were naturally anxious to avoid, adding this unremunerativo expenditure to the cost of a bad investment. Jfr Justice Denn.iston, in delivering bis own separate concurrent judgment, remarks : It must bo perfectly obvious that the Bale by the mortgagee was made in perI foctly- good faith, with full notice and public advertisement, and with a punc- i bilious regard to the requirements of "Tho ] Conveyancing Ordinance Amendment Act, j 1350." If it was in any way defective or * irregular, it waa so, on the mortgagor's ] own contention, only on the ground that , the property should not have been sold 4 under a reserved price. The highest possible reserve which could reasonably have been placed on it -would not have obtained ' the property for the mortgagor or have pre- ] vented the mortgagee from acquiring it. ] It is abundantly clear that he suffered no ] appreciable loss by tho alleged irregularity. t I need add B£_ more. The above quotas tioiis suffice. « One other point. Mr Hogg quotes from < tho statutes and from, the Chief Justice's < judgment in his efforts to disprove my statement that the passage of the New i Zealand Bank Act, 1861* Amendment, 1 ISB9, "did not in the slightest degree affect « Captain Hamilton's position with the * bank, or his rights and remedies against ■ it/-* Ido not, of course, know -what was ] in. his Honor's mind when ho said :-£— i It seems doubtful whether there was pow- , er in the bank to buy in as mortgagees ' when thi3 sale was made. ] I do know, however, that clause 64 of tho bank's deed of settlement gives it j power { To take and accept absolutely in satisfac- ( lion liquidation or discharge of any debt ; previously due to the company any lands, \ houses, merchandise, ships and any other , real or personal property and to cause * the same to bo conveyed or assigned and « delivered to the company (he., the bank). J It would appear, therefore, that there was no ground for the doubt expressed S by his Honor the Chief Justice, particu- j. larly as it was not referred to by the * Judges of the Appeal Court in their judgment. I therefore affirm my pre- £ vious statement that the passage of the 1889 statute did not in the slightest a degree affect Captain Hamilton's position. Air Hogg asks: Why was the Act of ISS9 made retrospective? The answer can bo fouud in the preamble to the Act itself, and in the retrospective clause in the Act (No. 6), which is as follows: The powers and provisions contained in section 5 of this Act shall have a retrospective operation and shall be deemed to ; have been in force as from the 11th day - of October, 1883, eo as to validate anything < which may have been done by the bank or \ tho board between that date and the com- \ ing into operation of this Act. The resolution of the bank's share- ] holders establishing the '"in globo" ac- < count -became operative on. October 11th, 188 S, and the operation of tho confirmatory statute had necessarily to take effect as from that date, in order to validate what had been done in. the way of setting up the "in. giobo " account. To contend that the passage of the statute bv the Legislature gives Captain f Hamilton a claim against the State for 3 redress seems absurd. Captain Hamilton < suffered no injustice, but if he had so i suffered (which I cannot admit), then. an. ? equal injustice hn& been done to every I other obligant whoso property the bank had been iorc;ed to take over in satis- * faction of indebtedness; and, if the State reoogndbes a claim on Captain Hamilton's i part, it can hardly a-eftise to recognise t claims by others who were at that time ° similarly situated and who had, unfor- » tiuiately, by force of circumstances, to J be similarly treated. * If it were legally possible to call up *■ for review the validity of past trunsac- j tions such as this, the effeafc would be as * pointed out "bv Mr Justice Edwards:— n To throw tho titles to innumerable pro- r perties into doubt and confusion. This letter closes the correspondence a as far ag lam concerned, and; I will not a trespass further upon your space beyond e quoting the concluding portion of Mr Juatice Denniston's judgment on the a , case, viz.:— o The plaintiff (i.e., Hamilton) asks a Conri of Kquity to say that, owing to an alleged irregularity, the bank has, pinco the sale, held the property, completed the title, spent large sums of money, and taken the risk of fall in values, for his benefit, and that he is entitled to take advantage of the great increase of land values in the interval and of the skill and judgment of tho bank's managers, and that he is in \ t fact to put a very large sum of money n into his pocket owing to an irregularity 0 caused by an erroneous interpretation of an Act. shared in bv himself and his legal fi advisers, hy which he was in fact in no way "J injured, Siu-h conclusion seems to me to „ be repugnant to common sense and .justice. I p