IN CHAMBERS.

Poverty Bay Herald, Volume XXXIII, Issue 10691, 15 May 1906, Page 3

IN CHAMBERS.

DUNLOP v. LYSNAR., J. C. Dunlop and Emma Dunlop v. W. D. Lysnar, application to review the decision of the Registrar fixing the amount of the security to be given by the defendant on his appeal to the Court of Appeal in this action, upon the ground that the security as so fixed by the said Registrar was inadequnto. In reply to. lris Honor, Mr Rees said itwas not ascertained at the time the matter was before tho Registrar that the property at Whataupoko was not available for security, us it had been given Avith other securities for a mortgage. His Honor: Is it proved or admitted what- the mortgage is worth after tho defendant lias been paid his debt? Mr Rees : No, it is only a matter ol supposition. His Honor: What is the amount? Mr Rees : There arc different values. He -explained to his Honor that there was. a. mortgage of £1300 to £1400 over tlie Whataupoko property, the subject of the Supreme Court action, when in the pos^jeesion of Mr .Dunlop, and a second mortgage : of £700 from Mr Diuilap to his wife. On those figures it would be a valuable and- available mortgage, but now it would, not be available when it was included with other properties as security for a mortgage over a large estate. His Honor : It may be said tq have been parted with. Mr R«cs pointed out that- by the Supreme Court judgment Mr Dunlop kid recovered his right to the equity of redemption in the property, subject to the payment to the defendant of the moneys tliat ho had paid on the property in settling the first mortgage awl other payments. The property was now stated to be worth between £3000 and £4000. Of that Mrs Dunlop's mortgage would . absorb- £IOOO or £700, with six years' iuterest, -and then there was the other mortgage paid by Mr Lysnar, amounting to £1300 or £1400. His Honor: Then there would be less than £700 coming to tho other plaintiff, Mr Dunlop? Continuing, his Honor- suid defendant might refuse to give plaintiffs' security beyond the costs in the Court of Appeal. .. Could not Mr Rees enforce the judgment ?, Mr Rees: Not while it is under appeal. His Honor: It depends on whether the cape has been slated for appeal. Mr Nolan:. It has been stated, and by fcjen^.

Mr Alston Coleman, who appeared for Mr Lysnar. said as to tlie property being worth over £3000, Mr R. D. B Robinson, borough valuer, in evidence gave its value at £1950, and there would be an additional 10 ,por cent, to be added for increment since that date. That valuation was in February, 1904, a&d it seemed difficult to comprehend how it had so largely increased as to be worth over £3000. His Honor: It is suggested now to be worth £3000, but £2000 was tho sum spoken of in the security. Mr Coleman said on 'reference to Mr Lysnar's affidavit it appeared tluit.when accounts had been taken the Dunlops would be indebted to Mr Lysnar for £2000, and that, in addition to 'the £1000 for which security had been already given by a bond as approved by the Registrar, would give a security of £3000. . His Honor: Is that admitted? Mr Coleman : Well, it is not- admitted by the other side. He pointed' out that £1400 was owing on the mortgage which Mr Lysnar had to be repaid by tho Dun- . lops, and that with costs, fib49, would bring the amount over £2000. His Honor : I can't go into an investigation to ascertain the state of indebtedness. Had the Registrar these matters before him? Mr Coleman said the Registrar luid the facts fully before him, but some of the matters did not appear on the affidavit. ' His Honor pointed out that if the.Whataupoko property was mortgaged again, there could now be no equity of redemption. Mr Coleman : The mortgage was given, it may be .pointed out to your Honor, not since this action was commenced but so fju* back as 1901. His Honor : But that was not part ot the evidence at the trial. Mr Rees : It was not mentioned. Mr Coleman : But it is now on affidavit. He roferred tb the mortgage of £1400 which the Dunlops would be required to redeem, and the costs £649, which, with the security of £1000 given by another party, was sufficient security. Ihe matter was gone into very fully by the Registrar, and the facts placed before his Honor should convince him that the Registrar's position should not be disturbed. Iu reply to his Honor, Mr Rees said it was not common knowledge between the parties when before the Registrar, that the property had been mortgaged in 1901. . , b Mr Coleman : It may have been known. His Honor: Of course they could have known by searching or enquiry. Mr Coleman 6aid the plaintiffs inu.vt have known, as die title liad been the subject of their fullest investigation. I His Honor said if the matter -was not brought before the Registrar, and if tliey did not know it as a matter of fact, they could not bring it before the Regis, trar. Mr Rees said Mrs Dunlop's position was intact, and she got what was due to her, and the judgment provided that Mr Dunlop should pay to Mr Lysnar what was owing to him, the property to be transferred to J. C. Dunlop. Nothing was known of the mortgage in 1901 when the matter was before the Registrar^ His Honor said what he intended to do was not a reviewal of what the Regis trar had done, but merely a suggestion a.«? to what, the Registrar would have done had he the same information as placed before the Court that day. He would fix the security at £1800. £1200 for Mr s Dunlop's interests and £600 for Mr Dunlop's, the Registrar to fix the nature of the security. The costs should be costs in the action, as it was one of redemption. Li regard to a formal motion re. printing the papers,, his Honor advised tlie parties not to print too little. The Court always liked to have everything that was really useful. COMPANIES ACT. In the matter of the Companies Act, and the matter of Messrs Common, Shclton and Co., Ltd. — Motion on petition for an order confirming the resolution passed lit -a- special meeting of the said Company, that the capital of the Company . be reduced. ■ Mr J. W. Nolan appeared in support, and explained that it was proposed to re. duce the capital from £ 100,000, divided into 20,000 shares of £5 each, to £40.000, divided into 20,000 shares of £2 each. His Honor ordered' that the petition be allowed, subject to the Registrar being satisfied on certain points, llie words "and reduced" to be used for one month only from the passing of the resolution. OTHER BUSINESS. In the matter of Frederick Tietjcn, de. ceased, application for tho approval of the Court to the sale bv consent of certain lands. Mr Stock appeared in support. Order made. In the divorce matter of Smith v Smith, in which Mr Ly6nar, for applicant, asked that the security in accordance with the order be settled, his Honor advised that the draft of the order should first be drawn up and submitted to the other side. This was the first thing to he done.