A LAND DEAL.

Taranaki Daily News, 18 September 1924, Page 6

A LAND DEAL.

REDUCING A MORTGAGE (AGREEMENT TO BE REGISTERED. SUPREME COURT JUDGMENT. The registration of an agreement to reduce a second mortgage has been detreed by His Honour the Chief Jus - tiiee (Sir Robert (Stout) tin Jhis Uftseirved decision which was delivered yesterday in the action brought at the last session of the Supreme Court at New Plymouth by Michael McDonald, Stratford, against Neil Alexander Brown, Buckland, Auckland, when the plaintiff McDonald asked for the specific performance of the agreement or £3OOO damages. On the question of costs, His Honour said that, seeing what had happened, he would allow costs to the plaintiff according to scale as if the amount claimed were £5OO only, £5 5s for the second and £5 5s for the third day’s trial, and witnesses’ expenses and disbursements. He would allow no costs to either party for interrogations or for discovery.

The action arose out of the sale and purchase of a block of 100 acres of land in the -Pukengahu district in 1020. Subsequent to the sale, during the slump, negotiations took place, with a view to securing a .reduction in the mortgage given as part of the purchase price. An agreement was arrived at and reduced to writing, but this document was never registered, and it was to enforce the specific performance of this agreement that action was brought by McDonald. The defence was an application for relief from the agreement on the ground that it had been induced by a misrepresentation on the part of the plaintiff a«s to his financial .position at the time. The case occupied several days in hearing, and had also been the subject of voluminous correspondence and interrigatories between the parties. In the course of his judgment His Honour said that although the circumstances were not difficult to unravel, there might be some difficulty in arriving at what would be a proper judgment to deliver. After reciting the particulars of the claim and the agreements entered into His Honour continued: “The real question is—Has the defendant in his defence and the counter-claim proved (1) that the plaintiff has been guilty of misrepresentation?; (2) that this misrepresentation induced the contract made to reduce the mortgages ? The basis of the defendant’s claim is that the plaintiff represented that if he did not make reductions on the mortgages h would have become a bankrupt. The plaintiff had been in the habit of having yearly balance-sheets made out .. . His method however, of preparing them was not one which would enable him to arrive at a just conclusion as to his financial position ... I am forced to the opinion that if the reduction made by the defendant had not been acceded to, the plaintiff would have been unable to get financial aid and bankruptcy must have followed if he had been pressed by the defendant or his other creditors.

"I stated at the hearing that, as the price of land had risen since 1922, I thought the parties might have come to some arrangement . . . and if 1 had the power that is .said to rest in arbitrators and in some foreign judges, I would have suggested terms. I am bound, however, by our English equity law and procedure, and I must therefore find for the plaintiff. 1 must state, however, that both parties seem to have wandered into byways in seeking relief. Some of the claims of the plaintiff were fantastic. Ido not see that either party gained anything by the voluminous interrogatories, etc. Looking at all the circumstances I give judgment for the plaintiff that the defendant perform his agreement by having the second mortgage registered, the plaintiff paying the costs of registration. The minutes of the decree in the event of disagreement are to be drawn up and shown to me.’’