THE BRUNNER MINE CASE.

Otago Witness, Issue 2309, 2 June 1898, Page 9

THE BRUNNER MINE CASE.

THE APPEAL COURT JUDGMENT.

Wellington, May 25.

In the case Geoghegan and others v. the Greymouth-Point Elizabeth Railway and Coal Company (Limited), beard in the Appeal Court lash week, judgment was given to-day. The questions for the opinion of the court were — (1) Whether the trustees for the debenture-holders have priority of lien over the plaintiffs in respect of the charge on the mine &nd plant ; and (2) whether the trustees or plaintiffs are entitled to the coal gotten at the date of the plaintiffs' judgment in connection with the actioD for damages arising out of the Brunuer miao accident.

The Appeal Court fouad that Mr 3?ilcher, secretary to the company, bad agreed to becomß agent for the trustees for the debenture-holderSj tk?.b this had been assented to aud ratified by the company, and that seizure on behalf of ,the dcbeuturs-holders had therefore been properly effected. The judges were all of opinion thafe the contention of plaintiffs that persons represented by them had a paramount charge upon tniae and plant could not ba sustained. To give this it would have been »ecessary for the Legislature to express itself in clear and unmistakable language, and this had not been done. The result was that charge given was only on a particular interest of those against whom damages had been recovered — in this case the company. This charge givns plaintiffs ahd those whom they represented privity over the general creditors of the company, but not ovec the encurrbrances previously created by the company. Plaintiffs could not take advantage of any irregularity in the seizure by the debenture-holders. That was a matter between the debenture-holders and the" company which could bB waived, and had been effectually waived by the company. The debentures of the company did not require registration under the Chattels Transfer Act, being expressly excepled from that act, and the trust deed was protected as being in effect part of the debenture. Further, tven if the Chattels Transfer Act applied, non-registration would not have made the debentures void as between thß pMtiea, but only as against the execution creditors and in respect of chattels in apparent possession of the company ; and it was very questionable whether the plant or coal was in tue apparent possession of the company when plaintiff*' charges were sought to be enforced. As regards the property not specifically mentioned, and as to which the debentures were generally a floating security only, the court was unanimously of opinion that on what had been done it had become a fixed security before the seizure by plainliffrf. Ifc was enough that the authority of the company to deal with the property in question had been determined. It was unnecessary to find that the whole business of the company had been brought to a standstill, though that appeared to be the fact. The court therefore answered the questions both as to name and plant, and as to the gotten coal in the favour of debenture-holders and" against plaintiffs. Costs were allowed to the debentureholders on the highest scale, to be cogts in the cause.

Mr Jellicoe applied for leave to appeal to the Privy Council, and that the debentureholders should be prevented from dealing with the mine in the meantime.

Leave was granted on the usual terms an to security for costs, but the court held that it had no power to make any order preventing dealings with the mine. Special application would have to be made to the Supreme Court for that purpose. Such application, however, the court intimated, could hardly be successful.