STAMP DUTY CASE.

Otago Daily Times, Issue 19504, 12 June 1925, Page 6

STAMP DUTY CASE.

ME WILDING’S APPEAL. THE CONVICTION' QUASHED. (Paa United Paras Association.! CHRISTCHURCH. June 11. The conviction of Frederick \V ilding, K.C., for an alleged breach ol the Stamp Duties Act, was quashed by Mr Justice Adams at the Supremo Court to-day. Hia Honor upheld the appeal against the magistrate’s decision witftout requiring appellant to answer. In giving judgment his Honor said that the conviction made one liable to a fine of £SO, and the amount of the duty of which the 'Government had been deprived. The onus was on the prosecution to prove that the appellant was being employed on. and about the preparation of a transfer with intent to defraud and had suppressed certain facts. The facts alleged to have been suppressed were the existence of an intermediary agreement between Mr Stephens and Messrs Annings Bros, for the exchange of the Clifton Falls. The appeal carno before the court as a rehearing, and the court had heard evidence and came to its own conclusion. “In mv opinion,” said his Honor, “the prosecution has completely failed to prove the offence charged, and there is nothing that appellant can justly be called to answer.” Appellant, was the senior partner in the firm of Wilding and Acland, .which had acted as solicitors for Bowron Bros. In 1917 Bowrons contracted with Mr Stephens for the sale of the property known as Clifton Falls on the terms of a memorandum in writing and of a formal contract prepared- in 1917. but not produced in court. In March, 1921, Mr Stephens informed one of the directors of the vendor company that he could not carry on. He was advised to sell, but the company declined to relieve him of his responsibilities. Mr Stephens instructed Mr Cook, a land agent, to dispose of his interest in the Clifton Falls, and Mr Cook negotiated for an exchange with Messrs Armings Bras, to take Clifton Falls and Mr Stephens Cook Rock. On April 6, 1921, a memorandum was signed in which the name of the vendor was not given. It purported to sell Clifton Falls to Annings Bros., and it was signed by Annings and P. G. Boag, who was the vendor to Bowron Bros., and who had not been given the title. The document was prepared by an "enterprising land agent” without reference to the solicitor of the parties, Annings Bros., obtaining nothing more than a memorandum from Boag, who could not be considered a party to the transaction. Mr Cook had no ins! ructions from Bowrons. It appeared that Mr Stephens had then dropped out of sight as far as Clifton Falls was concerned. In August, 1922, an agreement between Stephens and Bowron Bros, provided that Stephens should give up Cook Rock. Annings Bros, continued to occupy Clifton Falls. In August, 1923, Mr Cook arranged for the sale and exchange of Clifton Falls to Mr Campbell, and of Kelsie to Annings Bros. Messrs Dougall and L T pham were acting for Campbell, and they proposed to take a transfer, bp to that date Annings had nothing but the Boag agreement as a title to Clifton Falls, and when asked for a signature to the transfer they refused for two reasons: (1) They had no title, and (2) it would make them liable to double duty. The only matter discussed by Annings and appellant was an action for misrepresentation on the sale. It appeared that Annings had given no information to Granger regarding the various documents discovered in Mr Cooks possession long after the transactions had ripened to the execution of the transfer in respect of which tho chargs was laid. Up to this date Annings Bros, nad but the Boag agreement regarding tho purchase of Clifton Falls, and no document connecting Bowron Bros, with it. His Honor said he would assume, in default of better information, that Granger had given the same statement to his principle. There were then no documents as in the present proceedings showing the connection of Bowron Bros, and Annings, and Annings and Stephens regarding Clifton Falls. His Honor found it difficult to see how Mr Wilding's opinion could be challenged. The Crown challenged it on the authority of Hulsc v. the Minister of Stamps,' a Court of Appeal decision m which the Chief Justice dissented. His Honor said that the Hulse case was no authority. Sub-section 2 of the Finance Act provided that a note or memorandum under the Statute of Frauds should be an agreement in writing. It was now suggested that an agreement in writing meant an oral agreement, and tho Chief Justice, who had disagreed with the majority of the court, had been gone to as an authority. His Honor was not prepared to hold on' that authority that oral agreements had to be recited in memorandums of transfer if there were no memorandum in writing. It might be somewhat difficult to show how the adoption of the method carried into effect would result In the loss of any duty. His Honor was not prepared to say that the parties were hound to cite the oral agreement, as the Court of Appeal had not held so. His Honor would assume that some documents were known to the parties, hut there was nothing that might he said to indicate that appellant had ever seen those documents on which the Crown relied for its prosecution. There was nothing to show of their existence. The evidence of Messrs Smith, Bowron, and Annings led him to the almost irresistible presumption that appellant knew nothing about the documents. The evidence had established quite clearly that appellant; had no knowledge of the documents on which (he Crown relied almost wholly to sustain a conviction. The presumption that whatever Mr Granger had known must have been reported to appellant was contrary to the well-known practice in big legal linns. That the senior partner should know all the matters dealt with by a clerk was quite impracticable. The principle of law demanded that a charge of fraud must be supported by tho clearest of evidence. In the present case the action of the Crown had been rendered much more serious by the standing of appellant in the profession. He was a K.C., and had acquired a reputation for honour and integrity, and ho (his Honor) must consider that. There was nothing further to add except to state that after carefully reviewing the evidence ho found that there was no case whatever to answer. Without calling on appellant to answer the charge he would uphold the appeal and quash the conviction. Mr Myers made an application for costs. Mr Macassey opposed the application, saying that the prosecution was brought in the interests of the public and the department. His Honor considered that if the whole facts had been considered by the department there would have been no -prosecution. Mr Macassey; The subject of the prosecution was justified by the facts before the department. His Honor: On the facts before me it was not justified, and I feel disposed to give costs if it is in my power. After authority had been searched his Honor granted the appellant £2l costs.