MAGISTRATE’S COURT

Southland Times, Issue 22492, 29 January 1935, Page 9

MAGISTRATE’S COURT

GORE SITTING. At a sitting of the Gore Magistrate’s Court before Mr E. C. Levvey,. S.M., yesterday, judgment was given in-fav-our of plaintiffs 'with costs in the following undefended civil claims: —H. and J. Smith, Ltd. v. D. Tuffley (Kingston) for 17/11, costs 14/-; United Trading Co., Ltd. v. F. Day (Gore) for £2 2/8, costs £1 10/6; H. O. Dawson v. Stewart McKay (Waikaia) for £9 5/3, costs £1 17/6; Thomson and Beattie, Ltd. v. F. Day for £1 3/6, costs £l7/6; H. and J. Smith, Ltd. v. Thomas Phelan (Edendale), for £2 6/8, costs £1 8/6; Farmers’ Central Garage v. John Henderson (Dunedin) for £lO 6/3, costs £4 4/6; W. T. Trusler v. Alister Anderson (Glenorchy) for £l3 13/6, costs £2 16/6; Adam Speden v. J. Mahon (Waikaia), for £2, costs £1 3/6; Mac Gibbon and Co., Ltd. v. R. J. Taylor (Gore) for £1 6/3, costs 12/-; David Harvey as executor and trustee of the will of William Francis Inder (deceased) V. Michael Feehly (Arrowtown) for 1/-, costs £2 12/-; J. Hoffman and Son v. F. A. Mcßride (Pukerau) for 13/-, costs 10/-; United Trading Co., Ltd. v. James Duncan (Mataura) for £1 8/10, costs 8/-; Creditors’ Protection, Ltd. v. F. A. Mcßride for £3 13/6, costs £1 5/6; Thomson and Beattie, Ltd. v. Walter Matheson (Waikaka) for 13/6, costs 10/-; Crawford and Grant v. R. S. Lange (Invercargill) for £2 4/-, costs £1 3/6; United Trading Co. v. L. Maguire (Wyndham) for £1 5/6, costs 8/-; E. R. Tutty v. Clifford Crawford (Gore) for £8 17/9, costs £1 10/6; Gore Service Station v. Alan Dallas (Gore) for £6 10/8, costs £1 5/6. On a judgment- summons D. Kerr (Gore), was ordered to pay to R. Hocking the sum of £3 11/- forthwith in default three days’ imprisonment. Re-hearing Sought.

An application was argued for a rehearing of the case heard on November 27 between The Gore Implement Exchange (Mr J. D. Paterson) plaintiff and Donald Murdoch Alexander Cameron, farmer, of Edendale (Mr Gordon J. Reed) defendant. The claim was for £lO 2/6 being the balance of the purchase price of a ridger purchased by defendant from plaintiff. The defendant filed a counterclaim stating that in July, 1933, the plaintiff warranted a tractor to be in good working order and thereby induced the defendant to purchase it at a cost of £5O. The tractor proved not to be then in good working order whereby the defendant incurred loss in having the tractor repaired, in loss of milk from the defendant’s dairy herd as a result of impaired farming operations, in extra grazing and in increased oil and petrol consumption. A claim of £lOl 18/1 by way of special damages was made up as follows:—Cost of repairs to tractor £l6 7/9; extra labour required £l3 0/6; grazing for defendant’s cows £2O 12/6; kerosene and oil £36 17/4; loss of milk £l5. The defendant also claimed £4O as general damages. An alternative claim stated that in purchasing the tractor the defendant made known to the plaintiff the particular purpose for which the tractor was required and relied on the plaintiff’s skill and judgment. The tractor was not reasonably fit for such purpose whereby the defendant incurred loss in having the tractor repaired, in loss of milk from defendant’s dairy herd as a result of impaired farming operations, in extra grazing and in increased oil and petrol consumption. The claim in this count was detailed as above.

After hearing considerable evidence the magistrate gave judgment for the amount of the claim and on the counterclaim he gave judgment for defendant for £6O.

The Gore Implement Exchange applied for a re-hearing on the grounds that important evidence had been discovered since the hearing and affidavits were filed indicating the evidence in question. The respondent Cameron opposed the application. Tlie application was argued by Mr R. B. Bannerman for the applicant and by Mr Gordon J. Reed (Invercargill), for the respondent. Mr Bannerman said that the ground of re-hearing was the subsequent discovery of evidence which would have materially affected the decision of the court and which could not have been secured at the time of the hearing by the exercise of ordinary diligence. Counsel proceeded to review the evidence deduced at the original hearing. The court had been led by the incorrect evidence of Cameron’s witnesses to disregard the evidence of applicant’s witnesses,_ proceeded Mr Bannerman. He submitted that the new evidence deduced by affidavits now before the court would have materially affected the decision in the case. Mr Reed said that the affidavits filed included one by the proprietor of the Exchange, a witness at the original hearing and another party, and he contended that the statements did not shake the evidence of Cameron’s expert witnesses. He referred to the law affecting rehearings and quoted authorities to prove that only on rare occasions could rehearings be granted. The Magistrate said that a rehearing could be granted on three grounds: (1) That there had been unfair conduct or that the party applying had been taken by . surprise at the hearing, (2) that the new evidence would not or could not have been obtainable at the time of the hearing, and (3) that ’the new evidence was such that it would have materially affected the decision of the court. After hearing the argument and reading the affidavits, the court could see no reason why a re-hearing should be granted. The application would be dismissed with one guinea costs.