DECISION RESERVED

Wanganui Chronicle, Volume 80, Issue 65, 18 March 1937, Page 6

DECISION RESERVED

DISPUTE OVER A YACHT APPEAL COURT HEARING THE CASE FOR McARTHUR [ Per PreM AmocKUjb. J WELLINGTON, March 15. The Court of Appeal concluded the hearing and reserved its decision in the case of the Pacific Exploration Co., Ltd. (in liquidation), and Sterling Investment Co. (N.Z.), Ltd. (in liquidation), versus John William Shaw McArthur, an appeal from the judgment of Mr. Justice Johnston in a case involving transactions concerning the yach* Morewa. The appeal was from a judgment of Mr. Justice Johnston, in which he held that McArthur was entitled to own the yacht. A sum of £10,335 4s 4d is involved. The Court of Appeal consisted of the Chief Justices (Sir Michael Myers), Mr. Justice Ostler, Mr. Justice Smith, and Mr. Justice Fair. Mr. G. G. G. Watson, with him Mr. H. J. V. James, appeared for the appellant companies, and Mr. R. E. Tripe for the respondent. In advancing his argument on behalf of the respondent, Mr. Tripe submitted that the trial Judge had negatived fraud, as he was entitled, and. in counsel’s contention, bound to do as matter of law in the circumstances of the case and on the facts. The following facts had been found in favour of the respondent and the Court of Appeal would not disturb these findings without very good cause: (1) That on, or before, December 1, 1933, it was agreed by the Pacific Company and McArthur that he should buy the yacht in consideration of his assuming that company's liability for expenditure on it. (2) That on, or about, December 6. 1933. McArthur, with the full consent of the Pacific Company, registered the yacht in his name as the owner. (3) That on some date prior to February 28, 1934, McArthur, as between the Pacific Company and himself, had assumed the liability of the PacificCompany in connection with the cost of the yacht.

(4) That at all material times up to February 28, 1934, McArthur held £60,000 of the Sterling Company's debentures.

(5) That in exchange for the cancellation of these debentures the Sterling Company transferred to McArthur on February 28, 1934, certain assets, including all accounts owing to it by the Pacific Company, which accounts included an account for the yacht. As a result of the last transaction the liability of McArthur in respect to the Pacific Company’s debt for the yacht had become discharged. On these facts it was urged that consideration for the transfer to him of the yacht had clearly been given by the respondent. With regard to the weight to be given to the evidence adduced at the trial, the following submissions were made: That the evidence given by McArthur in support of his case had not been shaken, that the evidence of two public accountants (Messrs. R. A. Glenn and D. G. Johnston), called by the respondent, was entitled to the greatest weight; that McArthur's evidence was supported by the books of account and the records put in at the trial; that his evidence was supported by the reasonable probabilities of the case; that his evidence was further supported by the fact, as found, that the appellant companies had actually benefited by the transactions in question. As against the respondent’s case the appellant companies rested their claim on an interpretation made by one of their servants of a single journal entry, such journal entry nixing been made at a date later than the transactions it purported to refer to and which had no explanatory narrative and which was consistent witf the respondent’s own evidence. The decision was reserved.