TIMBER AGREEMENT

New Zealand Times, Volume XLVI, Issue 10640, 13 July 1920, Page 5

TIMBER AGREEMENT

SHOULD IT BE RESCINDED? INTERESTING CASE BEFORE APPEAL COURT. A point of law arising out of an agreement entered into four years ago between a northern„ sawmilling company and a private individual was argued before the Court of Appeal at Wellington yesterday. The appellant was Thomas George Cook Howe, of . aimilia, Auckland, farmer, and tho respondent tlio Wahniha Sawmilling Company. Ltd. (in liquidation). . On the bench were Thoir Honours fho Chief Justice (Sir Robert Stout), Air Justice Chapman, Air Justice Sim, and Air Justice Herdman. Dr H. Dean Bamford (Auckland) appeared for tho appellant, and Air O. F. Skerrett, K.C., with him Air W, D. Anderson, for the respondent company. THE AGREEMENT. As set out in tho amended statement of claim, on December 23rd, 1916, th© appellant agreed to sell to the respondent all the millablq timber^standing upon a certain portion of his land subject to definite terms and conditions. It was agreed that the millablo timber referred to should menu all logs measuring three foot or more, and that tho purchaser should have the irrevocable option to cut, remove and mill the timber upon payment of a prescribed royalty; also that the agreement to continue in force until the timber was entirely felled and milled, but not beyond a term of 17 years. It- was agreed that if there should bo millable timber still remaining upon the land at th© expiration of the term or within one calendar month after the expiration, notice of extension should be applied for a period or not more than four years, tho remaining timber to bo paid for at double, the previous royalty; this notice should bind the' company to* cut and remove all remaining millablo timber. IN THE LOWER .COURT. .

In the lower court certain of law arising out of the agreement were argued. The court was asked to decide whether the agreement was a lease; whether, assuming that breaches on the part of th© plaintiff were established, the court had jurisdiction to grant relief against the remission of tho contract ;and whether the defendant by reason of the non-payment by the plaintiff of certain instalments or royalties, and in view of the voluntary liquidation of tho company, was entitled to prevent the plaintiff from continuing tho cutting and removal of the timber. His Honour Air Justice Cooper ruled that the agreement between the parties was a lease within the meaning of sections 93 and 94 of the Property Law Act, 1908, and that the court had jurisdiction under the latter section to grant relief against th© recission of the agreement. . The appellant asked that that decision bo reversed upon the grounds that the judgment was erroneous in point ° f laW ‘ LEGAL ARGUAIENT.

Counsel for the appellant argued that the agreetoept implied no . S leasc. and that tho court could not grant relief. Ho then proceeded, to quote legal authorities and previous cases m support of his contentions. Mr Skerrott submitted that ' the agreement was substantially one of lease, and that the reservations and exceptions were , subservient to tho right of occupation. The court reserved its judgment.