MORTGAGED LANDS

Wanganui Chronicle, Volume 76, Issue 67, 21 March 1933, Page 6

MORTGAGED LANDS

FARMER AND BANK QUESTION OF CONTRACT

[ Per Press Association.! WELLINGTON, March 20. In August, 1932, a writ was issued by William Douglas Lysnar of Gisborne. against the National Bank of New Zealand claiming over £50,000 damages for alleged breach of contract. After a hearing extending 'Over four days. Mr. Justice MacGregor gave judgment against the plaintiff, allowing £250 by way of costs. The Court of Appeal is to-day hearing an application by Mr. Lysnar to reverse this decision.* Mr. Lysnar is appearing in person, whil e Mr. C. A. Hislop and Mr. G. R. Powles are appearing for the. respondent. On the Bench are Justices Reed, Ostler and Smith. In the pleading .in the Court below plaintiff alleged that the, hank agreed to reduce his liability for prior advances to £30,000, provided plaintiff secured from the East Coast Commissioner a further lease on the back portion of his property for a further term. Plaintiff claimed damages for loss of equity in his farm property of which the bank had taken possession, for value of live-stock and chattels, and for an increase of his liability to the East Coast Commissioner. The trial Judge held that the long-drawn-out negotiations had reached finality, and that th e contract had not been proved. In opening the case Mr. Lysnar submitted that the bank could not raise the defence of statute of frauds, namely, that there was not a sufficient memorandum of agreement in writing, as the bank had expressly agreed to confine itself to the questions: (1) Was there a contract? (2) What were its terms?

At this stage Mr. Hislop interrupted to say that Mr. Lysnar had agreed that the ease be dealt with by the trial Judge on its merits. Mr. Justice Ostler replied that the statute of frauds was not material in answering the question “re contracts?” and as far as the merits were concerned, the majority of eases for defence of the statute of frauds had no merits.

Mr. Justice Seed informed Mr. Lysnar that the Court was of the opinion that in the meantime the question as to whether there was a sufficient memorandum in writing of the contract need not be argued by him. Hr. Lysnar further submitted that tb a trial Judge had improperly admitted. evidence showing that there was a contract between the parties, but that this had been subsequently varied. He stated he had objected most strongly to this evidence as the bank had not pleaded a new contract, but the trial Judge had declined to reject it. He said only a day and ahalf instead of four days would . have been taken in the original hearing it the rules of the Court had been at all properly respected. Continuing his argument, Mr. Lysnar submitted that, the National Bank was not entitled to bring evidence showing that there was an alteration to the contract with the bank, even if the matter had been raised in the bank’s pleadings, because (1) such evidence conflicted with the terms of the written contract; and (2) the bank was not allowed to avail itself by such evidence of a technical rule of law. Regarding defendant’s alleged parol contract he submitted that as this could not in any ease be performed within a year and as it was not in writing, it was void under Section 4 of the Statute of Frauds. The Court adjourned until to-morrow.