Saturday, 10th July.

Otago Witness, Issue 1230, 17 July 1875, Page 9

Saturday, 10th July.

Mr Barton said that he did not wish to argue the same points which he had argued in moving that the case be struck out of the list, ami he asked His Honour to note that he took the same objections which he made in moving for the rule. The first point he submitted wjis whether the Board must hear the case ; ajid, second, if they hear the case, must they grant the land '! There were two separate points involved in that : and the first was not strictly a. matter for appeal, because the proper remedy was by mandamus. The Court could not dictate to the Board how the Board should decide a case ; it could only review the Board's decision after it had been given, and here no decision had been given — hence the proper remedy was by mandamus. The second was whether, assuming the Board had decided the case, the Supreme Court could review the decision of the Board. It was complained that the Board had not yet met and decided tiie ca&e, and, under section 18 of the Act, the Board must hear and determine a case before an^ appeal lies. Very large powers and decision were given to the Board, and this was not an ordinary routine business that the Chief Commissioner could perform under section 13 of the Act, If this were a routine matter, the Legislature would not have given the Board so long a time (21 day.-*) to come to a decision. A statutable contract had been alleged on the other side, but, he submitted, there was none, for the Board had the right to refuse the applications under .sections :W, 42, and 43, which he cited. As to the Superintendent's consent being required to make the land to be land of special value, he contended the consent need not be in writing, but might be verbally given. There was a case in which, where the architect had to certify, and the contract did not say in writing, a verbal certificate was held sufficient. Ihen, as to the entry of the reasons for declaring the land to be laud of special value, the proviso was a condition hubsequent, not precedent, and, if Mr Logan was aggrieved, he could have a mandamus to compel the Board to insert its reasons for its decision in the minuter, Mr Stout said there were three questions that should be decided by the Court in this ca-je. The first was : Wan tho land open for sale or application to purchase at il an acre on the 7th January. This first question included two subsidiary one*. («) Was the land reserved or withdrawn before the 7th January '. (h) Had the land been declared laud of special value? lhe second question was: Had the Board refused the application? aud this also included t.vo subsidiary questions, («) Did i,^! ie i. 1 :B ? avd he:ir the application at all? (Ij) did the Board refuse the application with the consent of the Superintendent ? The third point was : What certificate should the Court send to the Board for its guidance ? This included— (a), whether the Court should de. cide that the Board should hear the application ; or (6) whether the Court should decide that the land should be sold to Mr Logan at LI per acre. He contended that the Board had, with the consent of the Superintendent, agreed on the 30th December to withdraw the land from sale at LI per acre. He pointed out that the proclamation of the Superintendent did not define what portion was to be sold, and what portion was to be leased ; aud submitted that until the Board had, under bection 40, determined that the land wai to be sold, there could be no statutable contract. Then, as to special value, he contended that the Board had declaved the land to be land of special value, and that the Superintendent had dissented to the Board's action, It was not necessary money should be paid for improvements, nor vet that improvements should be on all the land that was lnado special value land j it was sufficient that there were improvements on some partis of the block j and a« tho Board had decided that there were imnroyenientu (aud thut was one of the grouudw of this action), that Avas sufficient, even though the compensation had uot been paid to the ruuholder. Theu, coming to the second question : Did the Board, with the coiuent of the Superintendent, refuse the application ? he contended (a) that the JJoajtf ftftd |wt h e »rd fee v^Osal&m at »ll;

they refused to hear Mr Connell (Mr Logan's agent), and did not, and by resolution decided that they would not go into the merits of the question, because they considered that the land was not open for application. This being so, the remedy was, by mandamus, to compef the Board to hear the application and decide it on its merits. Then he also contended (//) that the Board had refused the application with the consent of the Superintendent, because the Superintendent consented to a certain course being adopted, aud the Board by their resolution adopted that course. On the third point he submitted that the certificate of the Court .should be that the Board had acted legally in setting apart the land as land of special value ; but, if the Court should be against the Board on that point, then, all that the Court could certify was that the Board should hear the case on its merits. He also contended that Mr Logan, having purchased most of the land at L 2 bs lOd on an average, showed that the Board had done right in making it special value land, and that .Mr Logan having paid Gs lOd per acre, on an average, more than the Board had fixed, showed that Mr Logan acquiesced in the opinion of the Board that the land wa«, better than ordinary rural land worth LI ; also, that Mr Logan, having purchased the land, had made a new contract with the Board, and he could not fall back on his old contract, if such existed, and that costs should be given against Mr Logan. Mr Macassey replied. His Honour made a suggestion that the Waste Lands cases should go to the Court of Appeal.

Mr Macassey was afraid there was very little chance of getting the parties to agree to that course.

His Honour reserved judgment. Tf necessary, he would have to defer his decision, and send a written judgment to Dunedin.