SUPREME COURT.

Poverty Bay Herald, Volume XXXIV, Issue 11056, 23 August 1907, Page 5

SUPREME COURT.

DUNLOP v. LYSNAR. In the Supreme Court m Chambers this afternoon, tlie Registrar, AL- W. A. Barton, read the judgment of Mr Justice Dciuiiston m the case John Charles Dunlop and another v. William Douglas Lysnar, heard at Gisborne on 20th. After reviewing the circumstances leading up to the case, ond detailing tlie matters brought before the Registrar of the Supreme Court, his Honor says that m pursuance of direction* the Registrar held an enquiry lasting several days, taking a great amount of evidence and reporting to the Court. He reported the value of buildings removed Was £110 ; a fair rent for the two cottages up to date of removal and for the dwellinghouse to the date of judgment was set down at £794 19s 7d, after allowing a fair percentage for repairs; that tlie rents received by defendant were £89. 165; that defendant by permanent improvements had advanced tine saleable value .of tlie property to the amount of £500. Under rule 408 plaintiff asked for-thq opinion of the Court on certain objections taken by then* to the certificate of the Registrar m respect to these amounts. The objections were m the first place on the general result of the enquiry. The plaintiffs had claimed to bo entitled to open up' the whole matter of the reference, or, if on appeal to tlie Judge on a matter of fact, or that at least they were entitled to show that the certificate was not justified by the evidence. He had not been referred to any autliority showing that m such a reference the Judge could as a matter'bf course be asked to re-try the question;, to do that would be to throw upon the Judge the duty relegated to the Registrar. Any such general objection, he thought, must Ibe dealt with on tlie principles which I would be applied td a motion for a. new trial on the ground that the verdict of a jury was against the weight of evidence. Tlie Registrar, it seemed to: him, liad throughout preferred tlie evidence given by the defendant's Witnesses to those of the plaintiffs; but, as was admitted by the plaintiffs' counsel, there was m every instance evidence which, if "believed, would support the conclusion, of the /Registrar. It had at no time been suggested that the Registrar, had acted dtehon&tly or jfrorii any improper motive. , That being so; a Judge ought not, so long as the Registrar takes a proper view of _the reference, to interfere unless iri very 'special circumstances> with the discretion entrusted to tlie Registrar, and from his own conclusions of fact on the evidence. The Registrar not only saw. and, heard the witnesses, but was familiar with the subject matter of the enquiry. He could see n<_ objection to- tlie Registrar'^ method oi ascertaining what wouljl be/a fair reptdl for the buildings if kept m order and deducting a fair .average allowance for repairs. (It had been contended there should be no allowance for upkeep.^ In fixing the occupation rent the Registrar had ' Before him evidence which, if believed, would warrant the result > arrived at by liim. Dealing with an objection to the finding of the Registrar on the question of permanent alterations and improvements, his Honor says : "The Registrar has noo stated that permanent alterations and improvements were made by defendant or their cost to him. . He has confined himself to stating that the permanent alterations and improvements made by him had enhanced the saleable value oi the property to the amount of £500. This enquiry is different . iri character to the others. The Registrar has , to ascertain the actual alterations and improvements effected.- The .reference to the enhanced value is, I think, a: lhriitaition, not an extension. The defendant is to be. allowed, m his accounts no more than he has actually expended, and if ;that only what has (beyond, of course, the repairs necessary to make the house ; tenantable) enhanced tlie value. The' evidence for the defendant on. this point seems to me to be very vague and unsatisfactory. Tlie | defendant can give almost no detailed account of his expenditure, except as to the painting and repairing before possession. He accounts, very reasonably, for tliis by the .act that as he entered into possession of thß property believing it to De his own V he naturally kept iio detailed account. Tlie Registrar has acted mainly on the estimate of persons who saw the property before defendant, entered and its now condition. They say generally that its selling value is ' now greater Dy so much. must be very largely guess\vork7 \ Tliere were/ however, materials supplied/by th£ defendant himself towhich I .tliink the has not given sufficient attention. On a date not mentioned, but which must, as shown by the document, have been later than March, 1905, the defendant furnished a statement of moneys expended (quoted by his Honor). ,The items amount to £282. They seem to cover all the expenditure up to' occupation by defendant, and alsoeverything done by him to the property m the wav of alterations Snd improvements up to /March 31st, 1900. . But when defendant files what he heads as claim, of defendant W. D. Lysnar against plaintiff J. C. Dunlop, pursuant to judgment, lie deals with very much tlie same 'riiatt'ers m , tliis fashion (items quoted, totalling £750). The Registrar has allowed to defendant, m arriving at a fair occupation rent for the property, a very substantial amount (roughly about 16 per cent, on the letting value) for repairs, and that without, a? far as I can see, any allowance for tlie fact that defendant is given the cost pf putting the property into good tenantable repair before occuparicy. That disposes of the claim for £250. After remarking on tue discrepancy between the amounts stated m the two claims for practically ■ the same thing's, and the explanation that was offered, his Honor says: "I do not think the Registrar has given sufficient weight to these considerations. I see no reos»n to suppose that any further information could be obtained on the point, and I do not thank anything would be gained by sending the report back to the Hegisirar for reconsideration. I tliink the ideferidant should not be allowed a larger sum than £250 on this item; and to. that extent I vary the amount allowed to the - defendant on the filth paragraph of the report. It was admitted that the defendant is entitled to the deduction of £89 16s allowed by the Registrar to the:plaintiff m paragraph 3 of the report. The cost of the two summonses, which I fix at £10 10s, will be costs m the. cause.