HALL ESTATE LAND

Poverty Bay Herald, Volume LXVI, Issue 19883, 9 March 1939, Page 16

HALL ESTATE LAND

REFUSAL OF TRANSFER ALLEGATION OF CONTEMPT ATTACHMENT WRIT ORDER Further litigation arising out of the Frederick Hall estate properties was heard in the Supreme Cornu yesierciu.* afternoon, when Mr. Justice Northcroft was asked by the Guardian Trust and Executors Company, Limited, to issue a writ for the auacnment of the person of Frederick Thomas Hall, for his failure to comply with the order of the court to transrei certain property to the company. 'Having heard lengthy argument 'by counsel. His Honour rejected the defence cu all points, and made the ordei asked for by the plaintiff. Mr J G. Nolan appealed tor the plaintiff, and Mr. W. D. Lysnar foi the defendant. In support of the motion, Me Nolan said that it had been in an endeavour to hav \ r t , he n{ del the dant carry out an award of the court made in March. 1938. B> tha. indament the court found that cei min property was held by the de SSflan °"on beh»ll o< ° TTr pci Hall, deceased, and the ae fendant was ordered to transfer the control of the property W the ad ministrator of the estate. The de fendant had appealed against the judgment, (but in October last the appeal had been dismissed. Administrator Handicapped Reauests to the defendant to execute a transfer to the Guardian Trust Company had been me wh refusal. The purchaser of a pait o the property had asked for a Hansfer and likewise hqd failed to secure it The purchaser, Grant, had applied to the company, and. the company had endeavoured to induce the fendant to satisfy Grant at least, -tf still refused, and Grant had taken proceedings. The Guardian Trust, in turn, had taken its own proceedings, and held that the defendant was obliged to make the transfer. Th company was aware that the defendant had agreed to sell to Grant a part of the land, but had refused to complete the transfer. Until it could be sure the transfer would be executed by Hall, the company could not administer the estate, as it was bound to. The company therefore submitted that all the lands concerned in the order of the court should be transferred to its control. The reply filed by the defendant was an affidavit by Frederick Thos. Hall, which claimed that no demand had been made upon him personally to execute the order of the courxActually, there had been no personal demand on the defendant, but the demand had been made through the solicitors in the recent litigation. The defendant, since the making of that affidavit, had been served personally with the documents, and had made no effort to comply. He had, however, intimated that writs were being issued to secure the setting aside of court awards made in the past. Letters Between Parties It had been stated in court this morning that all the various derenaants in those proceedings had been iierved with writs. He knew, said counsel, that at least two of the defendants had not been served with the writ, and he submitted that m the’circumstances it would be most improper for Hall or his counsel to refer to the subject matter of the new proceedings in the course of this hearing. Mr. Nolan mentioned that when the Supreme Court judgment had gone against him, the defendant Hall had gone to the Appeal Court, and, having lost his appeal there, appealed for leave to appeal to the Privy Council. That application had failed, ana the defendant had then launched new proceedings. His attitude was well illustrated by the terms of the correspondence from the defendant Hall and the plaintiff company. His Honour commented that the opening paragraph of one letter was hardly complimentary to the Court of Appeal. Mr. Nolan said that the tone of certain references were not only offensive, but could eycn be construed as suggesting that the courts had lent themselves to the obtaining of judgment by fraud. The whole tone of the correspondence was truculent and threatening. His Honour: The company’s acts are construed by the defendant as “conspiracy and fraud.” “Abuse of Court Processes” Counsel submitted that even if the language was overlooked, the purport of the defendant’s letters was simply that the defendant would carry out the grossest abuse of the court’s processes. If the defendant lodged an application to the Privy Council for special leave to appeal, and at the same time filed an application for a stay of proceedings in the present case, it would be in the discretion of the court. The course he actually proposed was to exploit every means of evading execution of the transfer. It had been held by the Supreme Court that the land was held by the defendant Hall on behalf of the estate of Frederick Hall, deceased. He would not transfer even to a purchaser with whom he had contracted to sell part of the property. Mr. Lysnar, on behalf of the defendant, declared that any abuse of the processes of the court was on the side qf the plaintiff' company. There were four grounds on which the plaintiff must fail, he held. The new proceedings which Mr. Nolan had referred to had been launched with the full knowledge of the plaintiff company. The proceedings comprised an effort to have set aside the past decisions and transactions, on the grounds of conspiracy ancl fraud. Actions „of the Courts His Honour referred to the lettei which he had previously mentioned as “scarcely complimentary” to the Court of Appeal. He did not blame Mr Lysnar for the letter. Mr. Lysnar: I do not shrink from the responsibility. It is my letter. His Honour: Well, it is not complimentary, even almost offensive. The courts act by rules and on evidence, and are not moved by individuals to do what they decide to do. Mr. Lysnar said that he realised that fully. He held, however, that the company’s counsel had misled the court by the statements they put before it. His Honour: You feel that the court was misled. You do not make any other suggestion? Mr. Lysnar: No, Your Honour. I hold that the court has been misled

all along by the acts of the company's counsel.

Mr. Lysnar then proceeded to outline his main contentions that the company could not enforce the transfer of the property while it was still subject to litigation, the circumstances being what they were in this case.

Trust Company and the Bank

Counsel further argued that by an affidavit, the manager of the Guardian Trust had admitted that the final dividend in the Hall estate had been paid, and that all that the company could do further was to wipe off the debts of the estate. The bank held a mortgage over the property for a greater amount than the property was worth, and the Guardian Trust was actually only the agent of the bank As such it had no right to take action such as this. The bank had prompted the first action to secure control of the land subject to this action, and had he been aware of its intention, neither the Supreme Court nor the Appeal Court would have made the decisions which were now on record. Mr. Nolan interposed an objection to the manner in which Mr. Lysnai was speaking. He felt entitled to piotest against the introduction of statements and charges which had no foundation in fact. His Honour remarked that Mr. Lysnar’s statements were so extravagant and had had* so little effect that Mr. Nolan need not feel concerned. Mr., Nolan objected further, however/that statements made by Mr. Lysnar when reported in the daily press must have an effect, as Mr. Lysnar no doubt was aware.

Defending Counsel Warned

His Honour warned Mr. Lysnar that he could address the court on the facts actually raised in this case, but could not range over the whole field of litigation between the Guardian Trust and Hall. “I am not a juryman, Mr. Lysnai, he added. “Impassioned appeals have little effect on me. Please confine yourself to the facts of this action. In the course of further submissions, Mr. Lysnar admitted that when Hr 11 was served personally with a demand to complete the transfer he had not done so. His Honour pointed out that them proceedings were for a writ of aUacvment of Hall’s person, to brin„ h m before the court to show cause why worse should not befall him. Had he signed the transfer, thus complying with the demand, he would have niacecl himself beyond peril. 1 Mr. Lysnar quoted the Mortgagors Final Adjustment Act as preventing the defendant dealing with his property while his adjustment application was still pending. His Honour asked if the Court ox Appeal had had its attention drawn t 0 this argument. Receiving a reply n the affirmative, he stated tha evidently the Court of Appeal did not attach the same weight to it as did M,. Lvsnar He advised counsel not. .o suggest that he could revise or ignore the order of the Court of Appeal.

Only the Privy Council could do that. Mr. Lysnar referred to a number of authorities on which he based his arguments, and claimed that the court had full authority, and indeed was obliged, to stay proceedings when it was aware that illegality had occurred. His Honour: You say that illegalities have occurred. I have no other means of knowing that they have occurred. Full Force of Court’s Award Mr. Lysnar referred again to the affidavit of the Guardian Trust manager, which, he said, proved that the trust company had acted as the agent for thg,Bank of New Zealand, and had adopted a dual capacity as administrator of the Hall estate and as agent for the bank. Counsel then addressed the court upon the obligations of the plaintiff in regard to the service of notice upon Hall, and upon the obligation which he contended rested upon the court to abstain from acting upon a motion now subject to succeeding litigation. His Honour gave it as his opinion that the order asked for should be granted. The court had made an order that Hall should transfer the land, and, an appeal from that de-' cision having failed, the court could not but regard the judgment of the. Court of Appeal as having full force,' and to see that it was obeyed. Dealing with Mr. Lysnar’s contention that the transfer was barred by statute owing to an application to the Mortgage Adjustment Commission, His Honour said this could not be regarded as having weight sufficient to warrant withholding the order. The Appeal Court must have taken this objection into account at its hearing. His Honour also rejected the other grounds advanced by Mr. Lysnar in opposition to the order. None of the objections could prevail, he said, and an ordei would be issued for the writ of attachment The plaintiff would receive costs'on the hearing, with disbursements.