APPEAL DISMISSED.

Star (Christchurch), Volume LXVI, Issue 20278, 12 April 1934, Page 11

APPEAL DISMISSED.

Legality of Bank Deposit.

IMPORTANT POINT RAISED

Per Press Association. WELLINGTON, April 11. The Appeal Court to-day heard a case involving an important point as to the legality of the undisclosed trust of moneys deposited in the Post Office Savings Bank on account of another person when already the depositor is obtaining in his own account the full amount of interest allowed by the regulations. The facts as stated by M*r W. E. Leicester, counsel for the appellant, are that the parties, Vito Antonio Truda, of Wellington, jeweller, the appellant, and Helen Truda, the respondent, were married at Southampton in November, 1920. They then went to the estate of the appellant's father at Traumotola, Italy. The estate, consisting of a farm, two vineyards and a house, was promised to the appellant if he stayed with his father, who was then an aged man, over 80. The respondent was a beneficiary and trustee in a large New Zealand estate of £50,000, and desired to come back to New Zealand. The appellant accompanied her. The appellant’s father died in October, 1923, altering his will just before and leaving his estate to the appellant’s sister. Arguments took place between the parties over this loss to the appellant through coming back to New Zealand, and it was alleged by the appellant that £SOO paid in different amounts between May, 1928, and April, 1929, by the respondent into the appellant’s Savings Bank account were gifts to make up for the loss. Mr Justice MacGregor, from whose judgment the appeal is now brought, and who gave judgment for the respondent for £SOO, but not for interest, did not accept the defence that the money was a gift. Conflict of Evidence. Mr F. W. Schramm, for respondent, submitted that the finding of the trial judge should not be overruled by the Court of Appeal. The trial judge had expressly stated that in view of the conflict of evidence, he was unable to make any findings as to a contract between the parties As no contract was proved, it was unnecessary to discuss the question as to its legality or otherwise. After hearing Mr Leicester in the Court delivered its decision in favour of respondent Mr Justice Herdman said that the main question was as to whether a contract had been established or not. In view of the conflict of evidence, he was unable to express the opinion that the findings of the trial judge should be overruled. In spite of the very able argument of counsel for the appellant, he was of the opinion that the findings of the trial judge were not sufficient for the Court of Appeal itself to find an illegal contract, and accordingly the appeal should be dismissed.

Mr Justice Blair said that the whole argument for appellant was based upon a story told by respondent in the Court below. This story had not been accepted by the trial judge Appellant was in the unfortunate position of not having sufficient: facts upon which an appeal could be granted and there* •fore it would have to be dismissed. Mr Justice Kennedy concurred.