APPEAL FAILS

Waikato Times, Volume 126, Issue 21035, 10 February 1940, Page 9

APPEAL FAILS

TRANSFERS OF LAND JUDGE UPHOLDS MAGISTRATE Involving an agreement for the exchange of sections of land, an appeal case against a magistrate’s decision was heard by Mr Justice Blair in the Supreme Court, Hamilton, yesterday afternoon. The appellant, James Cochrane Cleland (Mr T. J. Fleming, Rotorua), sought relief from a decision of Mr S. L. Paterson, S.M., delivered in the Magistrate’s Court, Hamilton, when damages amounting to £3B 10s were awarded to the respondent, Edward Earle Vaile, farmer of Rotorua (Mr L. K. Munro, Auckland).

The statement of appeal stated' that on March 31, 1936, Vaile and Cleland entered into an agreement to exchange certain properties. On the land taken over from Cleland there was a shed which Vaile regarded as part of his newly-acquired property. In July, 1937, however, a man named McLaren, a former tenant of appellant, removed the shed, stating that it belonged to him. Vaile proceeded against Cleland and McLaren, and in a reserved judgment Mr Paterson decided that the shed was not a fixture on the land and was the property of McLaren. Nevertheless, Vaile had undoubtedly suffered a loss and was entitled to his remedy. He had given value in his part of the deal. Judgment in favour of Vaile for £3B 10s was entered against Cleland. No Fraud Allegations Mr Fleming, after outlining the appeal, referred to the rule that after completion of a contract there was no remedy except in the case of fraud. There was no allegation of fraud against appellant, and the magistrate had not found any. Cleland really thought the shed was his and had even paid the insurance on it. There was no quarrel with the magistrate’s finding in respect of McLaren, but there was a quarrel regarding the judgment as it affected the two parties in the present action. The purchaser could have ascertained the facts by the reasonable Inquiry

which a purchaser was required to make. Mr Munro __ submitted that the magistrate’s judgment should be upheld on the ground that the appellant sold to the respondent all the buildings and improvements on it. Both, at that time, were under the impression that the shed was a fixture on the land. Vaile was sold certain improvements and he was entitled to get them or their value. Even if the shed was not strictly a fixture but was only a chattel he was entitled to it. The respondent was not precluded from his remedy, because the sale of the improvements was something which was collateral to the sale of the land. Dealing with the principle of mistake, Mr Munro submitted that if there had been a common mistake between the parties, the appellant had been unjustly enriched and he was bound to recoup the respondents. When dismissing the appeal His Honour said that Cleland unquestionably got value from the thing; he received from Vaile, who asked to be recompensed when he did not get all that was promised. Cleland refused. There was no dispute that Vaile was to get the shed, and Cleland did not hand it over. Vaile had really paid Cleland for something that belonged to a stranger. Respondent was awarded costs.