THIRD-PARTY ORDER

Poverty Bay Herald, Volume LXVI, Issue 19882, 8 March 1939, Page 6

THIRD-PARTY ORDER

PAYMENT OF MONEYS

CONTRACT LI ABILITY

HALL ESTATE PROPERTY

Arising out of the alleged purchase of land by the plaintiff from the defendant, a case which came before Mr. Justice Nortlicroft in. the Supreme Court to-day had a connection with recent litigation, between a prominent trust company and> a Gisborne business man, which has continued 1 over a number of sessions of the court in Gisborne and also involved recourse to the Appeal Court. The plaintiff in to-day’s case was James- Grant (Mr. T. A. Coleman), and the defendant Frederick Thomas Hall (Mr. W. D. Lysnar), the plaintiff claiming specific performance of a contract, and £l5O damages, or alternatively ithe return of £l2O paid as consideration, and £2OO 13s damages. The defendant, while denying the claim, moved for leave to issue thirdparty notices to the Guardian Trust Executors' Company, Limited, and to the Bank of New Zealand. After hearing counsel His Honour granted the application for issue of third-party orders. Moving in respect of the third-party motion, Mr. Lysnar intimated that he made the application under the new rules of procedure. His Honour pointed out that the plaintiff had not claimed' against the Guardian Trust or the Bank of New Zealand. Mr. Lysnar stated that the defendant was under an order of the court to deliver the property in dispute to the Guardian Trust and the bank. His Honour asked- whether that was not a complete answer to the plaintiff’s case. Mr. Lysnar: We claim, that to be so. Mortgage Adjustment Application In further .submissions, Mr. Lysnar stated that the transfer of the property had been agreed to by the defendant at the suggestion of an officer of the bank. Further, the defendant had an application before the Mortgage Adjustment Commission which had not yet been dealt with finally, and he was not iin a position to give specific performance of the transfer. His Honour suggested that Mr. Lysnar .should confine himself- at the moment to the motion for the issue of third-party notices. Counsel proceeded to refer to the defendant having disputed with the Guardian Trust and the bank concern - ing his right to the property which was the subject of the transfer, The court having decided against the defendant, he now claimed that liability for the performance of the con trad was shared by the two institutions. Complete Review Sought

Mr. Lysnar reviewed the previous litigation and the basis of Hall’s resistance to the claims made by the institutions. He mentioned that, writs had been issued against .the Guardian Trust, the Bank of New Zealand, the Union Bank of Australia, F. Wrey Nolan, and D. C. Purdie, the new action being designed to secure a complete review by the court of all the past transaction concerning the administration of the estate of Fred Hall His Honour intimated that he would hear Mr. Coleman on the question of third party notice.

Mr. Coleman briefly addressed tin court, stating that he could not follow Mr. Lysnar’s contention that the new procedure rules covered the application in a number of ways. Regarding the existence of an application to the Mortgage Adjustment Commission, Mr. Coleman said that it had no bearing on the third party notice. Again, the plaintiff had no claim against anyone but the defendant. Frederick Thomas Hall, and did not know of any order of the court which barred his action against Hail, who was the registered proprietor of the land. The monetary payment made by the plaintiff was made not to the defendant but to tiie Guardian Trust for remission to the bank. Proof of Relationship

His Honour asked if it were not necessary to have those parties before the court to prove that the money was received on behalf of Hall, and paid to his creditor. li seemed that it was necessary to prove a relation between Hall and the other parties which made a payment to the other parties in effect a payment to him. Hall challenged the claim, he pointed out. Mr. Coleman: Hall covenanted to give a clear title to Grant, in his personal contract. His Honour: He says that lie has not had the money. You say that the payment to the Guardian Trust constituted a payment to Hall. You require to prove your point. Mr. 'Coleman stated that the plaintiffs only concern was to have the transaction cleared as soon as possible. He had no objection beyond that to the joinder of a third party, but he had intended to show in evidence that the payment was made in due form. Hi.s client was not anxious to become involved in litigation which might be long-drawn-out. His Honour ruled that, the defendant was entitled to judgment on the motion. He would give leave accordingly. The hearing of the claim for specific performance would have to stand over, His Honour pointed out.