DAMAGES CLAIM FAILS

Poverty Bay Herald, Volume LX, Issue 18253, 23 November 1933, Page 2

DAMAGES CLAIM FAILS

ALLEGATION OP FRAUD SALE OP GAMING MACHINE (Per Press Association.) AUCKLAND, this day. A claim for £3OO damages- for alleged fraudulent misrepresentation was brought by Austin Harry Paul and Frank D. Menzies (Mr. J. F. W. Dickson) against Noah Cohen (Mr. C. Bagnall), before Mr. Justice Smith in the Supreme Court. The action arose out of the alleged purchase by the plaintiffs of the defendant’s share in a game known as the “Clown” machine. Th.e statement of claim set out that through the defendant s agent the plaintiffs purchased an interest in the “Clown” machine for £3OO. It was alleged that there had been fraudulent misrepresentation in that the defendant had represented that the machine was patented in New Zealand; that the machine was- a true reproduction of one used in England, and that it did not contravene the Gaming Act; that the defendant suppressed the fact that the machine had been brought from Sydney, where it had been declared illegal; and that he also concealed his knowledge that the police were contemplating proceedings under the Gaining Act in respect of tlie use of the machine. The defence denied that the plaintiffs had agreed to purchase the defendant’s interest in the machine, and that the defendant had ever employed an agent to sell his interest in the machine.

Austin Harry Paul, a tobacconist, said he had had the “Clown” machine installed by the defendant. Menzies, and a man named Hater had called on him one morning and had said there were great prospects' for the inuchine. They told witness that Cohen needed ready money, and wanted to sell h'is half-interest in the machine for £4OO. Hater told witness that the legality of the machine could not be questioned. He did not say it had been judged illegal in New South Wales. Eventually it was decided that witness and Menzies should purchase Cohen's interest for £3OO, each paying £l5O. An agreement was entered into between the parties on June 21. In July, the police brought a prosecution against a tobacconist who had one of the machines in his premises. The magistrate found that the machine was a game of chance, and since that date business had been at a standstill.

At the conclusion of the case for the plaintiffs, Mr. Bagnall applied for a nonsuit on the grounds that there was no proof of damage. His Honor said it was an action in which damages were claimed for fraud. One essential element was proof of damage. There was no admission by the defence that the machine was illegal, and a conviction against another party was not evidence against the defendant. Mr. Dickson submitted that if fraudulent representation was proved, tjnimages must naturally follow.

“There is no evidence before the court on which I would be justified in awarding damages,” His Honor said. “There is nothing before this court to show that the machine is illegal, and damages have not been proved. The plaintiffs will be nonsuited with costs.”