COURT OF APPEAL

Otago Daily Times, Issue 21981, 16 June 1933, Page 5

COURT OF APPEAL

LYSNAR y. NATIONAL BANK THE APPEAL DISMISSED (Peb United Press Association.) WELLINGTON, June 15. The Court of Appeal this morning delivered its reserved judgment in the case of Lysnar against the National Bank of New Zealand. A majority of the court (Mr Justice Reed and Mr Justice Smith) held that the appeal should be dismissed. The concluding portion of their joint judgment states: “ We are of the opinion that the appellant has proved neither a tripartite contract nor if two contracts were intended in that form, that the contract beween himself 'and the bank ever became operative. In the result, the judgment appealed from, in our opinion, is right, and the appeal must be dismissed, with costs on the highest scale, but not as from a distance.” Mr Justice Ostler said_ he would have liked to agree with the judgment of the majority of the court, but he was unable to do so. Even if he could, and if the appellant had succeeded in the full amount of his claim, it appeared to him that the appellant would still be hopelessly insolvent, because he claimed only £50,000, and the bank's claim against him amounted to £70,000. For this reason all the litigation seemed to be merely beating the air. For the reasons contained in his written judgment he was of opinion that the appeal should be allowed.

In August, 1932, a writ was issued by William Douglas Lysnar., of Gisborne, against the National Bank of New Zealand, claiming over £50,000 damages for alleged breach of contract. After a hearing extending over four days Mr Justice MacGregor gave judgment against the plaintiff, allowing £250 by way of costs. The Court of Appeal heard the application of Lysnar to revise this decision. In the pleadings in the court below' the plaintiff alleged that the bank agreed to reduce his. liability for prior advances to £30,000, provided the plaintiff secured from the. east coast commissioner a further lease on the back portion of his property for a further term. The plaintiff claimed damages for the loss of equity in his farm property, of which the hank had taken possession, for the value of the live stock and chattels, and for the increase of his liability to the east coast commissioner. The trial judgeheld that the long-drawn-out negotiations had reached finality, and that a contract had not been proved. KINEMA THEATRE LICENSE PRIVY COUNCIL APPEAL INTENDED. (Pee United Press Association.) • WELLINGTON, June 15. The court also delivered judgment in the case Kerridge v. Girling-Buteher. The court found in favour of appellant, and ordered the writ of mandamus prayed for by the plaintiff. The Chief Justice (Sir Michael Myers) held that the regulations under which the defendant purported to act were repugnant to section 32 of the Kinematograph Act, and were also invalid as . they were' not authorised by section 26 of the Board of Trade Act. The other members of the court all held that the regulations were repugnant, Mr Ostler, ■in addition, holding that they’ w'ere ultra vires, as not being authorised. , The Solicitor-general (Mr A, Fair),on behalf of the defendant, made formal application for leave to appeal to the Privy Council, and asked for an order that the order for a mandamus. lie in the office of the Supreme Court until the matter ie further considered. .. . The court adjourned the application for leave to appeal, and ordered that the writ of mandamus should not issue for seven days. Costs (30gns), and disbursements were allowed the plaintiff.

This was an application brought by Robert James Kerridge, of Gisboime, tor a writ of mandamus ordering Roy GiriingButchery chief inspector under the Kinematograph Films Act, 1928, to consider and deal with an application made by Kerridge on December 2 last for a license for the projection, of a kinemato.graph film in respect to certain premises to be erected in Hinemoa street, Rotorua. In his statement of claim Kerridge - alleged that following his application his solicitors received a letter from -Girling-Buteher in which the latter stated that he had received an instruction trom the Minister of Industrie and Commerce made pursuant to the Board of Trade (Kinematograph Film) Regulations. 193-, directing him not to issue the license asked for, and that he proposed to act under, that direction. These proceedings came before Mr Justice Ostler on March 8, and were removed by him into tne Court of Appeal. Mr Spratt said the defendant had absolutely refused to consider Kerridge’s application because ot an instruction from.the Minister purported to be made under the Board ot Trade Regulations, 1932. The plaintiff claimed that those regulations -were ultra vires in that they were made without statutory authority, and they conlerred ton the Minister powers far wider than those which the Board of Trade Act, 1919, enabled to be conferred. They were sb wide as to confer upon the Minister the right to say who would be admitted to the exhibiting industry or the right to say how many or how few picture theatres there would be in each particular town. — : RIDING ON GRASS PLOTS BY-LAW HELD TO BE ULTRA VIRES. (Pee United Press Association.) V WELLINGTON, June 15. In the case Martin v. Smith, the lull Court delivered judgment in favour ot appellant. . . , . Mr Justice MacGregor, in a judgment in which the Chief Justice (Sir Michael Myers), Mr Justice Ostler, and Mr Justice Smith concurred, held that the by-law under Which the appeallant was convicted of riding across grass plots was ultra vires to the council, and repugnant to the laws of New Zealand. His Honor also considered it unreasonable and uncertain in its terms. For these reasons the appeal would be allowed and the conviction quashed, with costs (12gns). to the appellant. The proceedings were ordered to be remitted back to the magistrate, with directions to dismiss the information, with appropriate costs. Mr Justice Reed dissented from the judgment of the other members of the Bench, and held that the council had statutory authority to plant the plots in question, and that, if a local body had the legal right to erect or constitute anything such as a plot on the street, it had also a legal right to make the by-laws reasonably necessary for the protection of the erection. In his opinion the appeal should be dismissed.

This was an appeal by Doris Martin, of Palmerston North, from conviction imposed upon her by Mr J. L. (stout, S.M., on November 21 for riding a horse along a grass plot in Church street contrary to the by-law of that city. Mr T. L. Relling. for the appellant, submitted that the bylaw was unreasonable and ultra vires, in that it had no statutory authority. The material question was whether large parts of streets could be taken away from the public and converted into grass plots across which the public could not travel. Before any council could interfere with the public use of a highway special statutory authority was necessary, and counsel submitted that the Palmerston North City Council had not thajt authority. Grass plots, he said, ran for miles on both sides of the street with varying widths of 6ft to 20ft, with the result that the public was greatly impeded in its use of the highway,' and danger was created by the congestion of traffic. Mr O’Shea, for the respondent, said the purposes of the grass plots were, first, to beautify the city; secondly, to reduce the cost of maintenance; and thirdly to keep down the dust nuisanci. He ■ submitted that under the Municipal Corporations Act the council bad abundant authority to pass the by-law