SUPREME COURT.

Gisborne Times, Volume XXVII, Issue 2436, 26 February 1909, Page 5

SUPREME COURT.

-A GISBORNE CASE.

Hilt AINA REREKAIPUKE y. • W D. LYSNAR AND J. COLEMAN.

‘ [Special to “Times.”]

• WELLINGTON, Feb. 25. - In the Supreme Court to-day, MV. Justice Chapman heard an action brought by Hiraiha Rerckaipuke, of Poverty Bay, widow of Pirihi Tutekohi (deceased), against Wm. Douglas Lyiaiar, of Gisborne, - solicitor, and John .Coleman, of Gisborne, administrator of deceased’s estate, to produce all deeds, books, writing, and!papers in their possession and custody relating to the estate of Pirilii Tutekohi and the sale”' of RuangarclnV block A, To Kanaka, about 134 acres, valued ait £3318. ,

Mr. G. Hutchison' (Wanganui) appeared for the plaintiff, and Messrs H. D. Bell, K.C. (Wellington), and J. R. Kirk (Gisborne) for defendant Lysnar, and Mr. Johnson (Wellington), assisted by Messrs Skerrett and Wyllie, for defendant Coleman. •

STATEMENT OF CLAIM

The statement of claim alleges that tho plaintiff is an aboriginal native woman-, the widow of the late Pirini •Tutekohi, and on the death of the latter became entitled to the land known as Ruangarehu D, -containing about 135 acres, or to some interest therein. In 1897 the defendant registered a mortgage against tho ‘land from Pirilii Tutekohi to William Charles Good to secure the sum of £325 on August 2Stli, 1.902, and tho plaintiff alleges that the amount was not actually received by Pirilii Tutekohi, but was-received by defendant, on behalf of Pirilii Tutekohi, and should be accounted for by defendant. On November 3, 1899, defendant registered against the land the following instruments: (I) discharge of mortgage above referred to; mortgage to Francis. Sweet-man Douglas to secure £SOO on August 1, 1902; (3) mortgage to himself .to secure £SOO and further advances on May 6, 1900;, (4) mortgage from himself to William Matbewson to secure zfiSOO on September IT, 1899; (5) discharge of mortgage referred to as 3; (6) discharge of sub-mortgage .referred to as 4. The plaintiff says that whether the mortgage referred as 2 wtas a genuine transaction or not, no such sum as £BOO was actually received by Pirilii Tutekohi'.* Whatever amount was advanced the moneys were received by defendant on account of Pirilii Tutekohu and should be accounted for by defendant. On August 14th, 1903, defendant registered: (7) discharge of mortgage referred to as 2; mortgage ■from Pirilii Tutekohi to Louis Thorn.ley Syrnes to secure £I2OO on February 21, 1907. The plaintiff alleges that this last-mentioned transaction was not a genuine one as it purported to-be an advance of £I2OO, but was either wholly or to a large extent made up of claims by defendant against Pirihi Tutekohi, which the latter had no opportunity of investigating or ascertaining in an independent manner. The plaintiff says that no money was actually received by Pirilii Tutekohi on or about the date of the mortgage, but that as the mortgage represented a genuine advance by the mortgagee such advance Was received by the defendant on account of Pirilii Tutoko.hu and should be accounted for.

About September, 1903, Pirihi Tutekohi became ill and signed a will, dated October 7, 1903, which was afterwards proved in the Native Land Court. It contained the following clause: “I also devise .and'bequeath Ruangarehu 1) Block to my trustees to be dealt with as directed by William Douglas Lysnar,” and the trustees and administrators-named in the will were the defendant and Charles Scudamore. Pirihi Tutekohi died about October 10, 1903. The plaintifF says that the circumstances of the preparation of and making of the will were such as should disentitle defendant as a solicitor from recovering any charges for sex-vices in respect thereof. On October 20, 1903, the defendant and Charles Scudamore applied to the Native Land Court for administration of the estate. On February 16, 1904, defendant, filed in the Native Land Court a notice renouncing any claim of right to be appointed an executor and on the same date ill© plaintiff arid Charles Scudamore withdrew the notice of-their'application and intimated their desire that the defendant John Coleman be appointed administrator. After various adjustments the Court on the next day granted admihisti-.ation to the defendant John Coleman, . but excluded from probate the devise of the Land “other than as part of the residue.'' An appeal "in the ? name of plaintiff was '.ultimately dismissed. The plain • tiff says that such proceedings in appeal were not in her interests, although in her name, and that she neye.r understood she was objecting to .the judgment of the Native Land Court -in the matto" The plaintiff, claiming to be. beneficially entitled to the land-, entered 'into various negotiations respecting the same and about the same time the defendant John Coleman obtained transmission of the title to him as administrator. / In December 1904, the tenant of the land, Ernest F. Krause, intimated his willingness to purchase it for £2,700, which offer was 'ref used bv the defendant John Coleman. Subsequently the defendant John Coleman obtained the mark of the plaintiff to a proposal for distribution of £2550, which he represented as the purchase money on the sale of the land to Louis Thorn lev 'Symes, and her marie was -also obtained to other flocuments purporting to bind her to directions to commit herself to various transactions in respect of the land. The plaintiff says all such documents and dealings were not fully understood by her and she claims that all matters as involved accounts relating to the land shall ho reviewed bv the Court in ■ the light ot facts which shall-Tie proved-to have happened prior to and contemporaneously with such transactions. J lie plaintiff'alleges that any sale _ to Louis Thorodey Syrnes was >a fictitious sale and was directed by tho defendant William Douglas .'Lysnar and for ms February 19, 1906 the following instruments were registered : (9) discharge of mortgage referred to as 8, (10) transfer from defendant . .John Colemau to Catherine Syrnes, wife of Louis Thornley Syrnes, in cons.c.ei action of £2550; (liy mortgage fropy Caand Louis ThoinLy

Symes to Blanche' Ailice.Barkor (£800) and Louisa; Barker (£1000). \ The plaintiff claims that in so far as tlie defendant-William Douglas Lysnar was concerned iih tho pun-chase of the land he .should account to the plaintiff in* respect of such interest. So far as the plaintiff is award there never was any settlement between the late Pirilii Tutekohi and the defendant William Douglas Lysnar in respect of the moneys (including rents) received by the latter in respect of the land; or, .if - there, has at any time been' a settlement between them, thy. '■'plaintiff,claims that the same may be ro-oponed and reviewed and that no costs or charges should be allowed him in respect of any matters in which he is shown to have acted other than in the disinterested service of his client. ■

The plaintiff says that on February 1, 1907; sho commenced an' action against the defendant John Coleman, which she afterwards discontinued on terms releasing him from certain claims in respect of the-estate of the late Pirilii Tutekohi. She has since applied to the dbfendant John Coleman to join with her in this action, but ho has declined so, so that (in so far as he may bo concerned to he heard) she has joined him as ia defendant, but does not claim any relief against him. Tho plaintiff claims against the defondant William Douglas Lysnar:— »

(1) Air account of all moneys received by him in respect of the said land whether as advances, rents, or purchase moneys from the ..respective dates of receiving same, together with interest thereon ;• .(2) That he be required within a reasonable time to file in this Court the particulars, of all costs, charges and expenses, or other claims, against the late Pirilii Tutekohi on account of the said land; and that directions be given for the taxation thereof and ascertainment; and that upon such taxation no charges bo allowed in respect of such services as may be shown to ha-vo been connected with the drawing and preparation of the said will or in connection with the sale of the said land or otherwise as may be relating to matters in which he' did not act in a wholly disinterested manner in the service-of his client; and that any such costs and charges and other claims" as may be ascertained on the foregoing lines be allowed to he deducted from the moneys found to be payable by him. as aforesaid. (3) That, subject to such moneys as lie may be found, to have advanced to the late Pirilii Tutekoiii, he he declared the trustee of the plaintiff in respect of any interest which he lias or has had in the said land; -and

(4) For such further or -other relief as in the circumstances may be just. The defence was a general denial of the allegations, accompanied by statements of accounts and bills of costs in the various transactions. No allegation of fraud being alleged against Coleman, the defence filed was brief and for the most part explanatory. All 'witnesses were ordered out of Court. t MR. HUTCHISON’S OPENING Mr. Hutch ison outlined the case along the lines of the statement of claim. •

His Honor: What is the purport of tire action; is it to compel Lysnar to furnish accounts up to the time that he ceased to administer the deceased’& estate ?

Mr. Hutchison: The deed ot.transfer is imoeached.

His Honor: Then there is an allegation of fraud against Lysnar. Mr. Hutchison: Yes.

Mr. Bell: Tlie deed.cannot be impeached in my friend’s case unless the plea is amended.. but if there is allegation of fraud it is absolutely necessary for the protection of my client that the plea should be amended.

Mr. Johnson : My client was asked to consent to be joined as ~plaintiff, but refused. He /was afterwards joined as defendant. There is no allegation against him. ‘ His Honor: I do not know how the plaintiff can succeed without an allegation of fraud against both defendants. A man should -not be charged with fraud without an -allegation. Yon are attacking a deed, Mr. Hutchison, and you should state the grounds for tlie attack. ''Something must bo alleged -and proved. I understand that Coleman is only a -nominal party to the action.

Mr. Johnson : There is no prayer in __tl)p' statement of claim against- us. His -Honor (after reading the statement): There is no specific charge against Colem-au, . MR. LYSNAREVIDENCE.

Air. Hutchison called the defendant, William Douglas Lysnar, solicitor out of practice, who stated ho had dealings with Pirihi Tutekohi extending oyer a period of years, and up to the time the latter died in 1903. In 1895 he acted for Pirihi in raising money, on a block of land 18 miles 'from Gisborne. The .amount was £2lO. A. W. Good was the mortgagee. The money was disbursed in a number of ' payments, as shown by hooks .produced. The amount included witness’ costs. He had not particulars of the costs. They were never made up. In 1897 he had' another tiansaetion with Pirihi, and £lls was advanced. Witness received the £i r The land mortgaged was bringing a evemie which he (witness) was receiving. He did not know what the annual rental was.. In May 1898 he registered another mortgage over the land for £SOO. The money was paid in cash to Pirihi. The cheque was produced. He did not know what amount Pirihi owed him at that time, hut it was about £350 for cash disbursed and costs. He did not know how the amount was made up as the accounts bad been burned. The mortgage was not registered under 10 months. After it was executed a submortgage had been given- to a William Matthewson for the same amount, £SOO, and the sub-mortgage was registered two days 'after the fidst mortgage. An'other mortgage was given to Mrs. Douglas in August, 1899, for £BOO. • The manager of the Bank of Australasia, .where witness hanked, he thought Mr. Syrnes, received a commission for negotiating the loan. The amount was" £5. '' Mr:* Bell objected .to . Mr. Lymes’ name being dragged into the case. ' - Witness (continuing): said part oi tlio money was used to T l nuid ,, tc Mr. Good’s mortgage, and £457 16s went to pay witness’ costs and, disbursements'. He obtained the signature of

Pirilii to the mortgage. A licensed interpreter -was present. How .was the £l5O left from tho £SOO disposed of? -It was absorbed in my costs and disbursements.

Where are the particulars of the amounts in other books. Did yon not cliargo interest on. the second £SOO from the date of tho mortgage? That is ,so. Yet you had.£lso in hand? Yes, hut that was held as a trust account.

Was the account ever explained? The interpreter explained it. Did you draw up the mortgage for Mrs. Douglas? - I think I did. Then there was only one mortgage left?

Well, I have a record that Pirihi properly understood the position. You still received tho rent from the property ? ■' Yes. - :•*’ ' \ ' ' ’There was another mortgage in 1903? - Yes. ' ~V-: ■ Did you have a-iiy interests in the mortgage? Yes, to cover two promissory notes. And you were acting as solicitor as well? Yes.~

Did you give any account for the £l5O and £2lO, tho amounts of promissory notes? ' No. The second was issued five weeks after tho first one?

. Yes. Did you hand Pirihi the money ? I gave him the equivalent. What equivalent? Services and other things. What other things? Various expenses. The bills were dishonored, were they not ? . Yes. Yet you hoarded them up ? Yes, I kept them. Did you then draw up a mortgage for £IOOO, and subsequently for £200? Yes. ’ Mr. Symes paid cheques? Yes. You were the execiitor of Pirihi’s will and as such you -advanced money on the security of the property? Yes. His 'Honor: ,It surely is very improper that a trustee and it solicitor should advance money on property' for which he is administrator. - Witness: It was at the deceased’s request that I w-as appointed as admmistrator. Air. Hutchison: Air. Coleman w-as afterwards appointed 1 administrator ? Yes. Ho investigated the claims on the estate? Wliat claim did vou-send in?

None; I was preparing a claim when Air. Chrisp, acting for the administrators, suggested a compromise. 4

-You were willing to give up all your interests in the land if you were paid?

A r es. How did you make up that claim? From my books. Where are those books?

They were accidentally burned. No —some were saved, but the books out of use were burned.

You gavo Air. Chrisp a promissory note which was charged to the estate? * "

Ydsi Air. Clirisj) had a claim against Pirihi.

His Honor (examining the account): The account is in your name, Mr. Lysnar, not in Pirihi’s. If Pirihi owed the money' why was the account not made out in his name? Because T told Air. Chrisp I would pay it, and Air. Chrisp looked to me for the money'. As I was short of cash he look my promissory note. I afterwards agreed to a compromise with Air. Chrisp as to my' claim on the estate. Air. Hutchison: You sent Air. Chrisp an account -after all? No; only a draft account. And y'ou wrote Air. Chrisp and asked that it should be returned?

Yes, Air. Chrisp estimated, my claim at £4OO. I -approved of it and returned the statement. Did Air. Chrisp say how he -arrived at that amount ? . No, I don’t remember that he did. Do you remember a meeting of persons concerned in tho estate at Air. Chrisp’s office? Yes, and I consented to reduce my claim to £350.

Do you know Krause, the tenant of the block of land? I have only met him -as a witness in Court.

Do you know what- Air. . Syrnes bought the land for?

No; I -had nothing to do with the transaction.

AVas Air. Symes present at the mooting in Air. Coleman’s office?

He was present at one meeting. Wercr the liabilities against tho estate made up? I. suggested that, as the whole of the money had been -absorbed, the creditors should reduce tlioir claims so as to allow something for the plaintiff.

To Air. Bell: -I recovered the block of land for Pirilii from AVi Pore. Pirihi was an undischarged bankrupt when he first came to me -as a client, but I arranged that he should -pay 20s in the £. Are the particulars of the receipts and disbursements shown in* your books? Acs, with a few exceptions. His Honor: When Pirihi came to see you what language was spoken— Maori ? I speak Maori. Mr. Bell: You consider, that, on cash receipts and cash disbursements, you are £l2 out of pocket as well as your costs? Yes. When Pirihi came to ask you to make liis, will did he want to give you the control of this block of land? Yes, -a-nd I refused.. I was willing to he one of tho administrators.. Did von at any time -act as solicitor for tho administrators? No, I only -acted as a creditor. The administrators arranged to sell tho estate to Air. Symes ?

Yes.- .... , v Did you know Krause was willing, to pay a higher price, than k.ymcs. Had you . 'any interest m the sale to J Nof I liad nothing to do ; with it in then examined the witness at length ac to the items of costs in Pirihi’s dealings. , Mr Bell sought to protect his client from the cross-examination, but 'IDs Honor ruled against him, I-lis Honor: So far., tlio witness lias

not given, any assistance to show how the moneys held by him were -absorbed -by costs or disbursements. Air. 11-utchison: Is it not true that, while your books.show extended disbursements, they do not show any charges for professional services? Yes, that is so. OTHER EVIDENCE.

Ernest F. Krause, tenant of the land, said his lease expired in February, 1910. He had an interview with Air. Coleman, -and Mr. Lysnar was present. He wanted to buy the land. A meeting of persons interested in the land- -was held, and lie was -asked to retire.

To. Air. Bell: He had not been asked for money to finance tho present action.

John Coleman, accountant, said he was asked by Air. Chrisp to become an administrator in Pirihi rutekohi’s estate. -He remembered a meeting at which Krause made an offer to buy the land. Air. Symes was present. Air. Lysnar had a claim of £4OO on the estate, which was subsequently reduced to- £350. Air. Symes did not complete the purchase, but the land was sold to Airs. Symes. There was no foundation for the charge that Air. Lysnar was interested in the sale; IT? did not think there was anything to show that Air. .Lysnar took any unfair advantage of ..the plaintiff.

THE PLAINTIFF’S EVIDENCE

Hiraina Rerekaipuko, the plaintiff, stated that Pirihi never told lur how much money he owed defendant for law costs. She remembered meeting Air. Lysnar and Air. Krause at Air. Coleman’s office. She was a Wed to sell her interest, in the land, ) it said she did not desire to do so. She did not remember being shown any statement of accounts or that she agreed to the division of the money from the sale among the creditors. Air. Siev-wn’gh-t was • her lawyer.

The -witness was flurried under examination, and the case was adjourned till Friday. The .proceedings were very protracted, a number of law paints being raised. The Court, was strewn with account books, ledgers, journals, files of documents and letters. Air. Lysnar was in the box four and a-half hours, and during Air. Hutchison’s examination of his method of-entering his costs in the ledger, Air. Bell frequently sought the Judge’s protection for his client, but H ; s Honor always ruled against Air. Bell.