PROCEEDS OF A SALE

Taranaki Daily News, 3 August 1932, Page 8

PROCEEDS OF A SALE

ARGUMENT OVER DISTRIBUTION.

MAGISTRATE SETTLES MATTER.

(Reserved judgment in the case in which the official assignee in the bankruptcy of William F. Lawrence, Stratford, proceeded against Felix Pobrica, Stratford, for £54 19s 2d, allegedly the surplus from a sale of Lawrence’s stock after a claim for rent had been satisfied, was given at the Stratford Court on Monday by Mr. R. W. Tate, S.M. In his statement of claim, Mr. Tate said, the plaintiff alleged that on February 2, 1932, Newton King Ltd.' at Stratford sold by public auction as agents for the defendant for the total sum of £ll7 8s 3d certain goods the property of the said W. F. Lawrence, upon which a distress for i nt in arrear had previously been levied by the defendant as landlord of Lawrence, and ■that the defendant hu' by the same authority seized the sum of 14s 9d in cash, the property of Lawrence. The plaintiff claimed £54 19s 2d, the difference between the total sum of £llB 3s and the amount that the defendant was lawfully entitled to retain. ■' The facts were that Lawrence being indebted to the defendant Nr rent, he distrained under the Distress and Replevin Act. Before entering upon the distress his solicitor had an interview with Lawrence, and it was arranged between them that instead of seizing and selling only as much as would be likely to satisfy the landlord’s claims, a clearing sale should be held of the whole of Lawrence’s stock, so that Lawrence, who had to go out of business, would obtain better prices than_ he otherwise would get for his stock. Newton King Ltd. were aware that the defendant was interested in the result only to a certain sum and that the balance belonged to Lawrence. After the sale and while the money was in their hands, on February 3, they were served wish two charging orders obtained by two judgment creditors of Lawrence. At this time they were properly sub-debtors of Lawrence; they had been nstructed to sell on behalf of both; they knew the amount payable to 'Pobrica and that the balance belonged to Lawrence. They took the course of paying the whole of the inbney to the solicitor who had instructed them, leaving it for him to pay the money to the proper parties. He deducted what was due to Pobrica, the defendant, and paid the balance into the court from which the,attachment orders had issued. The /court paid the money out of court on one of the attachment orders. It was clear that the sale was a sale by the distraining landlord and the tenant Lawrence jointly, and under the circumstances it was a good arrange- 1 ment for Lawrence. Mr. Tate was ■ unable to see any element of unlawfulness in the defendant’s action. Of the deductions from the gross proceeds of the sale; the rate of the auctioneer's commission and the rate of bailiff s wages were the only items requiring consideration.

The bailiff's wages deductable on account of Pobrica amounted to 20s only; it was reasonable that the -balance should be borne by Lawrence, as he got the benefit of the extra work. On a sale by a landlord under the statute, commission on the sale Was limited to 5 per cent., but Newton King Ltd. charged the 10 per cent, usually charged for sales of commodities. As between the parties the commission should be 5 per cent, only on £5O 9s 2d (being £49 9s 2d rent and £l’for the bailiff), or £2 IQs 6d, and the commission on the balance of the proceeds of sale above £5O 9s 2d at the rate of 10 per cent, should be borne by Lawrence. A sum of £2 10s 6d was deducted in excess of the statutory commission and for that sum the plaintiff would have judgment.