WHO SHOULD RECEIVE IT?

Taranaki Daily News, 13 April 1934, Page 3

WHO SHOULD RECEIVE IT?

DISPUTE BETWEEN PLAINTIFFS. MONEY HELD BY DAIRY COMPANY. A case of some interest to dairy farmers was argued before Mr. W. H. Woodward, S.M., at New Plymouth yesterday afternoon, the point being whether an order for' the payment of money obtained by the Crown Lands Commissioner under a bill of sale from a factory supplier was effective. Decision was reserved. The money claimed (£4 4s 4d) was held by the North Taranaki Co-operative Dairy Company, which appeared as the defendant, but the real dispute was between the two plaintiffs, H. J. Fitzsimons, Waitara (Mr. W. Middleton), and the Commissioner of Crown Lands (Mr. G. Macallan). Mr. A. A. Bennett represented the dairy company which, he said, would submit to the order of the Court. , nQQ The position was that on July 4, 19za, Fitzsimons mortgaged chattels and stock to the Crown under the provisions of the Chattels Transfer Act, 1924. Fitzsimons supplied to the dairy company milk and cream from cows bound by the instrument of security and at the time of its execution, at the request of the Commissioner of Crown Lands, he made an assignment in favour of the Receiver of Land Revenue of 20 per cent, of the moneys payable to Fitzsimons each month by the company. ' . . During December, 1933, /theL-Commis-sioner demanded an increased assignment, btft Fitzsimons refused to sign any increased assignment, and on January 17, 1934, the Commissioner, as “grantee of the bill of sale and acting as attorney for Fitzsimons,” executed the order disputed. This document, which was served on the dairy company on January 20, 1934, authorised the company to pay onethird of the moneys due to Fitzsimons to the Receiver of Land Revenue. . On February 20 Fitzsimons became entitled to £2l 13s from the company which, after allowing for certain deductions, paid £l7 8s 8d to Fitzsimons and retained £4 4s 4d pending a settlement of the present action. If the order mentioned were found to be valid the Receiver of Land Revenue would be entitled to- judgment for the amount, but if the order were found to be invalid and not . binding on the parties Fitzsimons would be entitled to judgment. Mr. Middleton contended that the bin of sale did not authorise the Commissioner of Crown Lands to execute another assignment of moneys, but that if it did authorise him the Commissioner had not acted in accordance with the power given in ,the clause appointing him attorney. Even if the Court held that the Commissioner was authorised to execute the order and did so according his authority, he still had no authority to delegate- the receipt of the money to a third person, the Receiver of Land Revenue. The only right the Commissioner had to receive money under the bill of sale was under the clause whereby he had the right to call for an order; having elected to call for, an order •for 20 per cent, he could not call for a second order, and he could not execute an order for himself as attorney for Fitzsimons. Mr. Middleton submitted that the Commissioner’s act was unlawful in that it was A breach of the War Regulations Act, 1920, and a breach of the Mortgagors’ Relief Act, 1933. Mr. Macallan argued that clause 26 of the bill of sale created an assignment of the whole ,of the moneys _ due to Fitzsimons for supply to the dairy company. He contended that the Commissioner was empowered by the bill of sale to do all things necessary to complete the assignment of moneys. He submitted that the Commissioner had been given a continuous power and that he had the authority to call for separate orders frorti time to time. Neither the Mortgagors’ Relief Act nor the War Regulations Act, 1920, applied to the case, he submitted.