LAND TAX DISPUTE.

Star (Christchurch), Issue 17028, 30 April 1923, Page 7

LAND TAX DISPUTE.

CLAIM FOR REPAYMENT. Judgment was given a.t the Magistrate’s Court t-o-uay in the case in wmch C. W. James and another (Mr Vr . it. Laacelles) claimed trom Henry Cotterill (Mr YV. J. Sim) the sum oi £52, being land tax owing on a property purchased by auction from the defendant on which the plaintiffs had paid the £52 claimed in order that the property might be cleared. The plaintiffs contended during the case that the tax owing on the property which consisted of certain farm lands near Norwood had really been paid for tho use of the defendant. The case was heard by Mr YYyvern Wilson, S.M., and the following is his judgment:— The defendant was mortgagee of certain lands at Norwood owned by one Belcher. The mortgagor made default and the defendant decided to exercise his power of sale through the Registrar of the Supreme Court. The property was put up for auction and sold to a person who was unable to pay his deposit, the attempt to sell thus proving abortive. It was put up for auction a second time and sold to the plaintiffs on March 25, 1922. A deposit on account of the purchase money was on that day paid by the plaintiffs and the agreement on the conditions of sale was signed. These conditions provided that the balance of the purchase money should be paid on or before April 25, 1922, and upon such payment the purchaser should be entitled to the possession of the property. At the time of the signing of the contract of sale in the auctioneers’ office the defendant’s solicitor (Mr Beswick) warned the plaintiffs that they had better put a man in possession of the property forthwith as it was undesirable that it should be left as it then was and that he (Mr Beswick) feared that certain persons might damage the buildings. The house was then unoccupied and the door unlatched, that state of affairs being known to the plaintiffs. Mr BeswicL told them that they could have possession at any time. Acting on Mr Keswick’s suggestion one of the plaintiffs who lived close to the property arranged for a man known as Soldier Charlie ” to live in the house so as to protect it- from trespassers. Mr James, in his evidence, said that he told ‘‘Soldier Charlie” that they had bought it, and asked if he would keep an eye on it so long as lie was there, until they got possession. 1 think, he said that more than once, for he told his solicitors that, in pursuance of Mr Bewick’s suggestion, he had arranged for “Soldier Charlie” to live in the house and protect it. The arrangement with him was made on March 23 (three days after the sale.) I can only assume .that that arrangement was carried out. It is quite evident that Mr Beswick made it clear that the purchasers might take possession whenever they liked. I think that both the purchasers intended to control the property at an earlier date than April 25, for not only did the purchasers put someone in the house to guard it, but Mr Chas. James left his employment as soon as he could and moved his furniture in on April 17, and by April 25 was installed with his wife. It is significant as to the arrangement with “Soldier Charlie” that he, who up to that time is said to have had a regular round or “beat” as a swagger, is still on the property. He has rested there for eleven months, anil I assume he is doing light jobs cn the place. I think that, as from March 28 “Soldier Charlie” was not a trespasser upon the farm, but was there us custodian for the plaintiffs and that the plaintiffs, by placing him in that position, must be taken tc have assumed control of the property. It seems to me that the case is on© governed by section 15 of the Finance Act. 1917. which provides that the buyer in possession, although the agreement has not ben completed by con veyanee, is liable for land tax as an The tax has been paid by the plaintiffs. and there is nothing in the Laud and Income Tax Acts which gives them imv right of recourse against the defendant who was not an owner, but n mortgagee not in possession but merely selling: under his power of sale, and thereby exercising a right invested in him to give possession to the purchaser. Judgment was criven for the defendant with costs. £3 3s