SUPREME COURT

Otago Daily Times, Issue 24773, 25 November 1941, Page 5

SUPREME COURT

1 DEATH AND SUCCESSION DUTIES CLAIM FOR REFUND The Chief Justice, Sir Michael Myers, was engaged in the Supreme Court yesterday in hearing.an originating summons asking for an order to I determine certain questions arising out of the wills of Frederick James Lake, late of Dunedin, tinware manufacturer, and Annie Louisa Lake, deceased, his widow. Questions for Court The questions before the court were: (1) Whether the Commissioner of Stamp Duties had been entitled to treat as an asset in the estate of F. J. Lake a parcel of 13,498 shares in F. J. Lake, Ltd., held in the name of the trustees of F. J. Lake, and to levy death and succession duties in such connection? (2) Whether the shares at any time were the property of the said Annie Lake so as to form part of her estate? (3) Whether the action of the trustees of F. J. Lake in selling the business of F. J. Lake and Co. to a company known as F. J. Lake, Ltd., constituted a breach of trust, and, if so, the was asked to exonerate the trustees for failing to obtain authority, and secondly to approve and confirm the said sale, if the beneficiaries who were of full age and capacity, assented thereto? (4) If the said shares became the property of the widow in point of law. did they become so by mistake? Mr J. S. Sinclair appeared for the trustees, Mr A. N. Haggitt for Erek Anderson Mden, of Christchurch, flying officer, a grandson, and Mr F. B. Adams for the Commissioner of Stamp Duties and Aimee Ngaire Louisa Clark. Mr Adams said that the Commissioner of Stamp Duties had agreed to abide by the order of the court which his Honor might make. An Innocent Breach Mr Sinclair said that the main question before the court was which asset was entitled to the parcel of shares. The company had been formed into a private limited company at the solicitor's suggestion. If the trustees had simply gone to the court and asked its approval for the formation of the company, he submitted that it had jurisdiction to give its approval, the trustees taking shares in the company and validating the shares as an approved investment. Counsel said that it was admitted that the trustees had committed an innocent breach of trust. He addressed the court on the legal aspect of the case, and submitted that the duty paid to the commissioner should not have been paid, and that it should be refunded. Mr Haggitt, in his address to the court, said that the commissioner must have been the most surprised man in New Zealand when he received the cheque for stamp duty in the first instance. He agreed, however, that the commissioner had acted very fairly throughout. His Honor: The whole question rests on the intention of Mrs Lake. There was a sale, but that was not a sale in accordance with the terms of the will, and was not intended to be. It was a sale which the trustees made wrongly, but which could have been made with the leave of the court, which should have been obtained His Honor added that the order to sell was now being asked from the court. Mr Adams, it. his address, said that the commissioner's view had been accepted by the executors of the estate, and they had accordingly paid the duty. He took it that the commissioner was not concerned as to who owned the shares, but that if they belonged to Mrs Lake then duty had to be paid. His Honor reserved his decision.