THE COLONIAL BANK LIQUIDATION.

Otago Witness, Issue 2209, 2 July 1896, Page 26

THE COLONIAL BANK LIQUIDATION.

MOTION TO APPOINT REPRESENTATIVE OF SHAREHOLDERS. THE COSTS OF THE COMPROMISE CASE. In the Supreme Court in Chambers on Wednesday, Mr Justice Williams heard, argument on a motion by Mr W. C. MacGregor to appoint Mr William Barron to represent the Shareholders' Committee. Mr Haggitt appeared on behalf of the official liquidators. His Honor : If I were to make the order which Mr W. C. MacGregor asks for, that Mr Barron be appointed to represent the Shareholders' Committee iv or about the proceedings relating to, the winding-up, I am satisfied that the effect of such an order would not be retrospective, and that it could not ba made to apply to proceedings which havebeen already disposed of. The order, therefore, would be useless as a basis for an application for co9ts in respect of the late proposed compromise. Nor do I think I ought to make this order on the materials before me in the general terms in which it is asked for. There are no special proceedings before the court at present, and it seems to me that rule 63 contemplates the existence of some proceedings before the court, and that an application should bo 'made that there should be a representative in reipect of those proceedings. When an application of that kind is made it should .appear that' at the time it is made there are a considerable body of shareholders who are ! iv favour of the».>proposed nominee Affidavits J which have been made in th> cvurje of the liquidation some time before wonM bar. ly be sufficient. What the court would require would ■ be to know the mind of the shareholders, or of the portion of them in respect of whom it was proposed ■to have a representative, at or about the time the application was made. I think, therefore, ' that Mr W* O. MacGregor's application muit be refuted. Then we come to the material' question as to whether costs are to be allowed either to Mr Young or to Mr Ma-Giegor in respect of their appearance at the late hearing. Both of the3e gentlemen appeared to support what was practically the same -contention, and both ajggaxfid. to as the. gusg Unug-a»mely,

to oroßs-examine- the witnesses who had given evidence by affidavit, aud whose evidence was relied on in support of the application. In such circumstances, I think, it is clear that if any costs are allowed only one set should be allowed, That certainly seems to be contemplated by rule 63, and on general principles, if several shareholders or contributor^ of a company appear in support praotically of the same contention they ought to be content with one representative, and the funds of the company ought not to bo saddled with the costs of two. If either of these gentlemen is entitled to costs, I think it is certainly Mr Young. He has come in under rule 62, and has put himself to the risk of costs, which that rule provides that ia certain events he is to boar. It is contended by Mr Higgitb that this rule prohibits any person who appears under it, as Mr Young has done, from beiug entitled to costs under any circumstances whatever. That ia practically the effect of Mr Haggitt's contention. I hardly think that that is so. It seems to me that the court has a general discretion as to costs, and that rule 71 emphasises the existence of such discretion. Whatever the decision on tho question then before the court was, it was reasonable and necessary that the persons who made affidavits should be cross-examined on them. That cross examination would, in the natural order of things, bo more efficiently conducted by a counsel who was hostile to the application than by a counsel who appeared in support of it. I should have been inclined, whatever the result of the application was, to have allowed the costs of cross-examining the witnesses to the counsel who cross-examined them. A fortiori, therefore, coßts should be allowed where the counsel who conducted the cross-examination was practically successful in his contention. I feel quite clear, therefore, that only one set of costs should be allowed, aud that if costs are allowed at all they •should be allowed to Mr Young. Then the only question is whether rule 62 absolutely deprives Mr Young of costs in any eveut. I understand Mr Hagdtt to «ay that if it were not for rule 63 he would at once admit that Mr Young was entitled to costs. Looking,- however, at rule 62, rule'7l, and the general discretion of the court as to coats, I am unable to say that rule 62 does deprive the person who comes under it of coßts under any circumstances whatever. I think, therefore, that Mr Young is entitled to costs. Mr W. O. MacGregor asked if his Honor would make it portion of the order that costs be apportioned

ttu Honor replied that the question of apportionment of coats was discussed in the Court of Appeal dn anoihpr case, and the Court- of Appeal could find no case where such apportionment, was nude.

Mr VV. C.' MacGregor : Will your Honor pardon me for saying that we had no notice that Mr Young was coming down here, and we felt it was eminently desirable in the interest* of justice that a cross-examination should take place. It seems discouraging that a person in that position should practically b-s mulcted in costs for assisting the court to arrive at the truth in the matter. His' Honor : lam afraid that is an accident which cannot be avoided. I quite see the hardship, but I do not see how you are to get over it. -

Mr Haggitt asked his Honor to fix the amoun of the costs to be allowed to Mr Young, and

His Honor fixed the amount at £20 and dis bursements.