COURT OF APPEAL.

Otago Daily Times, Issue 20991, 2 April 1930, Page 4

COURT OF APPEAL.

OPTION OVER FOREST LANDS. LARGE 'SUM INVOLVED. (Peb United Pbesb Association,) WELLINGTON, April 1. A further phase of the case Rainer v. the King came before the Court of Appeal to-day, when the court heard argument on questions of law arising out of the facts to be determined before the trial. Frederick John Rayner, of Auckland, dental surgepn, in January of last year filed a Petition of Right under the Crown Suits Act 'against the King, alleging that, by written agreement, dated October 11, 1928, made with the Commissioner of State Forests, he agreed to give and the commissioner (acting on behalf of the King) agreed to take an option to purchase forests of timber on certain freehold and leasehold lands containing approximately 5140 acres, known as the Tauri-Tutubau Forests, at a oonisderation of £35,000 for the option, and in the event of the option being exercised the price of the timber to be ascertained and paid in the_ manner provided in the agreement, credit being given for the consideration paid for the option. He further alleged that the sum of £35,000 was payable on October 11, 1928, but had not yet been paid, and he asked that right be done in the matter. The Solicitor-general in _ turn filcd_ a plea to this petition denying the existence of a valid agreement, and alleging that at the time of the negotiations between suppliant and the commissioner the former’s title to the lands in question was not in order; and, even if it were proved that an agreement as alleged had entered into, this was beyond the authority of the eommisisoner, and therefore not binding on the Crown. The case was thereupon set down for trial, but Mr Justice Ostler made an order for argument before the. Courts pf Appeal on certain questions of; law arising out of the facts. These questions, as follow, are ■ being argued;— . Was the agreement referred <*>_ in the petition ultra vires of. the Commissioner of State Forests? Did the fact that the land was subject to -part XIII of “The Land Act, 1924,” and section 74 of “The Native Land Amendment Act, 1913,” or the fact that suppliant was not the registered proprietor of the whole land, but held a portion under option to purchase, entitle the commissioner to decline to be bound by the agreement. For suppliant appeared Mr A. Gray, K.C., and Mr H. J. James; for the Crown, Hr A. Fair, K.C. (Solicitor-general) , and Mr A. E, Currie. On the Bench were Mr Justice Herdman, Mr Justice Reed, Mr Justice Adams, Mr Justice Ostler, and Mr Justice Smith.

Mr Fair said that although £35,000 was Tecited. as being payment for the option it was, in fact, part of the purchase price. The whole transaction was part of the schdme for the construction of a railway from Rotorua to Taupo, and an agreement, if it had been entered into, was intended as an integral portion of the scheme. The Crown in due course had had the title to the land searched and was not' satisfied, and 14 days after signing the deed it declined to go on with the The agreement had been . drawn up in very crude form and had not been given careful consideration. It was' not clothed in the correct language. It was, originally drafted by Mr Skelton, of Auckland, solicitor for the suppliant, and submitted to be placed before Cabinet in order that the terms of the purchase might be approved prior to the Commissioner entering into an agreement. At no time was there written authority for payment by the _ Crown of this money out of unauthorised expenditure. The agreement was signed by Mr K. S. Williams. acting in the absence of the then Commissioner of State Forests (Mr O. J. Hawken). With relation to the first question to be answered by the court there were two submissions by the Crown —(1) The Forests Act, 1921-22, did not authorise the purchase by the Commissioner from a private person of an area of standing timber in order to establish a forest entirely independent of already existing State forests; (2) the Act authorised the acquisition o£ private land, only for purchase incidental to or in connection with already existing State forests and no provisions specifically authorised the acquisition by purchase of an independent'forest of standing timber of a large acreage. If such power existed it involved a complete change of policy on the part of the Legislature, It was beyond argument that no such power existed prior to the passing of the 1021 Act, and if it existed it was not only new but it interfered with the ownership of private land. If the contention of opposing counsel was correct it gave power for trading in State forests, but if such power was intended it would be. clearly shown in the Act, whereas it was not. He also submitted that even if the Statute conferred power to purchase or to take private forests the Commissioner had no power to bind the Crown to pay moneys unless such moneys were appropriated by Parliament and provided for out of unauthorised expenditure. ' It was an admitted fact that no moneys were at any time appropriated by. Parliament for the purchase of this forest. At this stage the court adjourned till to-morrow. ALLOWANCE UNDER WILL. COURT RESERVES JUDGMENT. (Peb United Press Association.) WELLINGTON, April 1. The Appeal Court to-day reserved judgment in the case Poison v. Poison and others. The parties involved in this case are laabell Sheppard Poison (of Wellington), widow, against Donald Murray Poison, Jessie Poison, and Elsie Torrance Bright, all of Wellington. The appellant is the widow of Angus James Neville Poison (late of Wellington), agent, who died at Auckland on December 4, 1927. By his will the deceased directed the sale of his various assets and, after certain small specific gifts to charities, the balance to be divided and one-fifth share given to the_ appellant. _ The defendants are each entitled to a similar one-fifth share, the other one-fifth to be given to charities. The value of the estate at the death of the deceased was approximately £5380. The appellant, in, May last year, brought an originating summons under the Family Protection Act for further provision out of the estate. This was heard ,by‘ Mr Justice MacGregor on July 4, 1929, and his Honor ordered that the appellant should receive, so long as she remains unmarried (in addition to that given by the will), an annual income on the one-fifth share given to charities. The appellant now appealed on the ground that such an allowance was not sufficient. TRUST ACCOUNT NOT AUDITED OBLIGATIONS OF PRACTITIONERS. (Peb United Pnbss Association.) WELLINGTON, Apj-il 1. The Appeal Court gave' its decision today in the ease of the Law Society versus George Mackay, a Wellington solicitor. The judge who delivered the decision stated that the practitioner’s trust account had now been audited up to March 25 of this year, and found to be correct, and in the circumstances the court was of opinion that the position would be sufficiently met by ordering Mackay to pay the Law Society's costs. His Honor concluded: "But we desire to make it plain, first, that the Law Society, as indeed it has recognised by the attitude it has taken up in the present case, has a duty in a matter of this kind; secondly, that a practitioner will not be permitted to ignore the society in the performance of that duty; and, thirdly, that the court is not disposed to treat lightly conduct such as that for which the practitioner in this case has been, brought before the court.” Mackay was accordingly ordered to pay the Law Society’s costs (£ls 15s) and disbursements.

Proceedings were brought by the New Zealand Law Society against George Mackay, solicitor, of Wellington, for having failed to have his trust account audited up to March 31. 1929. Mr von Haast. who appeared with Mr Free for the Law Society, said the court would see from the affidavits that the practitioner had failed to have his trust account audited and had been fined £oo for such. The Law Society communicated with him, and he promised to have the audit undertaken. but took no steps until about the commencement of the present session of

the Court of Appeal. The audit had now heen filed, but only up to March 31, 1929. The Chief Justice pointed out that under the Law Practitioners’ Amendment (Solicitors' Fidelity Guarantee Fund) Act, the Law Society had the power to insist on an audit being up to date. Mr D. M. Findlay, who represented Mackay, said he understood Mackay had done practically nothing for some months past. The amount to the credit of his trust account at March 31, 1929, was £2 8s Bd, It was quite well known that he had not been attending to his practice, and his neglect to reply to the Law Society’s requisition was in accordance with this neglect of the whole of his work. The auditor had recently informed him that everything was now in order. Mr Findlay requested that the court should deal with the matter immediately and dispose of_ it. as Mackay was practically out of practice. The Chief Justice remarked that it was a most serious neglect, censurable in. the highest dearea.