SUPREME COURT.

Gisborne Times, Volume XXVII, Issue 2469, 6 April 1909, Page 5

SUPREME COURT.

GISBORNE GASES. AHENATA TE MAIRE AND TOKO RIHARA v. W DOUGLAS ' E ! LYSNA.R. JUDGMENT FOR PLAINTIFFS - WITH COSTS. The Registrar of the Supreme Court 3 (Mr W. A. Barton, S.M.), yesterday V. j read the iudgment in the'"' <£.*«' 'V-: of Ahenata Te Mairc and Toko RiKu-ji versus W illiam Douglas Lysnar,'s3arrj%ter and solicitor of Gisborne, in M &eai-se heard before Mr Justice Edwards in the Supreme Court, Gisborne, last month. i The Court was crowded with interested - listeners, while the judgment was being y ‘ read, the seats at the Counsel tables j being all occupied by members of the Bar. The case was a trial of action claiming an injunction to restrain the defendant from appearing and acting as ■ plaintiff’s solicitor in the Validation-. . Court, and for damages. Mr H. J. Finn appeared for the plaintiffs and Air .-'j Barnard (Kirk and Burnard) for de- : fondant. The judgment was as follows: • This is an action to restrain the defendant from farther appearing and i acting as the plaintiffs’ solicitor in certain proceedings in the Validation -Court. These proceedings began in the ; year 1895. It is in dispute as to wife- '%\ tlier or not the defendant was ever re- \ tained by the plaintiff Ahenata te f Maire to act for her in those proceedings. The terms upon which the retainer, if any, was given are also in dis- ...... pute. Two decrees, relating to different blocks of land were made by the ‘ Validation Court on the 28th of June; 1895, under which the plaintiff Alienates te Maire, and one Tamihana Waitatakino became entitled to certain moneys. Tainihana Waitatakino has since died, and the plaint’ff Toko Ribara is the administrator of his estate. It is not pretended that Toko Rihara has retained the defendant as his solicitor. The defendant, in the course of the proceedings in the Validation Court, received cn the 6th of November 1897 on behalf of the plaintiff Ahenata te Maire the sum of £43 6s lid, and on behalf of Tamihana Waiiatakmo, who is now represented by the plaintiff Toko Rihara the sum of £33 18s lOd, making a total received on behalf of the plaintiffs on that day of £77 5s 9d. On the 10th of March 1899 the defendant also received on behalf of the plaintiff Ahenata to Maire the sum of £32 17s Id, and on behalf of Tamihana Waitatakino the sum of £25 14s, making a total received on behalf of the plaintiffs on thatday of £SB 11s Id. This sum, together - with the sum of £77 5s 9d, received by the defendant on the 6th of November ib'97, made a total received by him up to the 10th of March 1899 on behalf or the plaintiffs of £135 16s lOd. The defendant did not account to the plaintiff Ahenata te Maire or to Tamihana Waitatakino for the moneys so received by him, or any part thereof. On the 23rd of January 1908, the plaintiff Ahenata -y te Maire, through her solicitor Mr Finn, demanded from the defendant payment of the sum of £43 T 6s lid, received by the defendant on her behalf on the 6th of November 1807, with interest for the same. On the 25th of the same month the defendant wrote to Mr Finn, acknowledging receipt of his letter, and then proceeded as follows: —“In reply I have to state that I find by my books that I do hold the sum of £43 6s lid for Ahenata te Maire, and that I wrote to her to this effect immediately after the receipt of the money. At the same time I find that there'is a considerable amount of costs due to me by Ahenata te Maire and others, far in excess of the amount I hold and quite apart from the costs I was paid out of the estate. However, so long as she leaves a reasonable amount on account of my costs outstanding, I do not desire to stand on my rights, and retain the whole, and 1 would be quite willing to arrange with you what would be a fair amount to-be retained. I also find that I have paid Hori te Ihi two sums of £1 each on account of the amount received for Alieuata te Maire.” It will be observed that although the defendant had in addition to the sum demanded by Mr 'Finn also received on the 10th of March 1899 the further sum of £32 17s Id on behalf of the plaintiff Ahenata to Maire, and although the receipt of that sum must have been, shown bv his books, to winch his letter shows that he had referred, ho did' not think lit to inform the plaintiff Ahenata te Maire, or her solicitor, of - that fact, while claiming the right to . rt retain the whole, and insisting upon his intention to retain at least part of the . sum of £l3 6s lid. payment of which had been demanded. The plaintiff s - evidence is that she did not know that A 5 the defendant had received any moneys on her behalf until the beginning of - : 190 S. It is certain that even atr tbe time when Mr Finn s letter of tlie -oiu - of January 1908 was written to the - defendant, this plaintiff did not know of the sum received by the defendant on her behalf on the 10th oi Maicli 1899. The attendant circumstances fe; show that the. evidence 'oi' tbe plaintiff'Jupon this point is true. On the 28th of January 1908 Mr Finn wrote to the , defendant, stating that he had notheard from his client, and inquiring; ;, what sum the defendant desired to retain for outstanding costs. On tlie Ist - of Februarv the defendant wrote to Mr Finn, stating that ho had to go boutlv for a few days, and that lie would attend to the matter on his return. On the 31st of January , the receipt by. the defendant of the sum ot £32 1-s Id on the 10th of March, 1899, having in the meantime been discovered, Mr bum wrote to the defendant as follows:-—”! am instructed bv Abenata to Maire to demaud from you the immediate pay-; _ ment of the sum of £136 10s, made up ;; as follows: ■ ■ 1897. Nov. 2. To cheque reoeived hv you to hand ~ s u to her 9 S 0 To cheque do 33 u 1899. March 10. To money _ received by you for her < 10 do do do. do 14 0 - , ■ . .®;- £76 1 0 Interest at 8 per cent on tbe. above sums to date 60 6 0 Total £136 10.0 'g She does not admit owing you any -: : : -money for costs or otherwise. .As you have ' retained her money now tor so;? * many years she insists on immediate y pavment of the full, amount with interest. I would be glad to receive your .~3 cheque , lor the aoovo bei’o'C the 6th inst.” ' ' ■ ‘ This letter appears to have eios-ed the defendant's letter of the Ist of T'eO- rt luiafy. On the 6th of February Mr.;: | Finn, <m behalf of the planrt’ft. Toko Rihara, wrote to Ae defendant as fo.lows:—“I am i untrue ted by ?d i ' Toko 1 | Rihara of Mulna, the admini-u-itor o>'

ig estate of Tamihana Waitatakino to demand from you the immediate payment of the sum of £lO4 4s Bd, being the amount of your indebtedness to him for moneys received by you from the Receiver of the Validation Court, which should, have, been paid to Tamihana, with interest thereon, at the rate of ,8 per cent from the respective dates you received same to this date. Failing payment my instructions are to recover the amount without further notice ” O

hi the 10th' of February 1808, the de-

fendant wrote to Mr Finn :—'‘Considering that I had written you before I left for the South on the 2nd inst. acquainting you .with the fact that I would be away for a few days, I was somewhat surprised?to find on my return several letters?:from, you demanding peremptory replied within a time which, owing to my- absence, you knew full well it was impossible for me to reply to. You, of course, understand that the matters in connection with the trust estate and the natives—including those for whom .you claim certain sums, as mentioned* in your letters —are incomplete and still pending.. Only a few weeks ago the present trustee informed me that lie proposes to have matters ready for a settlement shortly, as the Judge of the Validation Court had these matters under consideration, which would bring iheso and other matters to a close; If your clients desire accounts, so far as the matters have gone, I will be pleased to have them made up and rendered, and 'if n'ecessaryTtaxed. .Since receipt bi your last letteri and after considering* the matter, I think it better to suggest having '.the costs completed and taxed, rather than act on the suggestion contained in mine to you of the

25th inst. You must distinctly understand that until the whole matter is completed, I claim a lien over any money I have in hand. I must say I am very much surprised at the attitude taken up by these individual Natives, as they are fully aware of the position, and the cause of the delay in the. final settlement.”

On the 10th of February also a writ was issued against the defendant on behalf of the plaintiff Ahenata te Maire, claiming to recover from the defendant the sums received on her behalf, with interest at 8 per cent per annum, amounting to £6O 6s Id. On the same day a writ was issued against the defendant on behalf of the plaintiff Toko Itihara, as administrator of the estate of Tamihana Waitatakino, deceased, claiming to recover the sums received by the defendant on behalf of Tamihana Waitatakino, with interest at 8 per cent. per. annum, amounting to £-46 lls lOd. These actions were settled on the 25th of February, the defendant paying in each case the moneys received by him on account of the plaintiff, with interestat 5 per cent per annum. The defendant explained his action in these matters in a letter of the same date to Mr Finn, as follows: —“lie Ahenata te Maire v. Self. (No. 894). Referring to our settlement to-day I think it better to place on record what was stated verbally, viz: that my reason for paying is that I am very busy indeed, and have no time to give the requisite attention to this matter!; and allow other interests of a more important nature to suffer, so that it will probably'be cheaper to myself, and certainly beneficial to my clients, if I sacrifice something in £. s. d. rather than have to neglect other matters, as I would have to do if I defended the action at the ensuing sittings of the. Supreme Court, commencing on Monday next. I also accept your statement 'to me- —which you called the Hon. Mr Samuel’s attention to—that- if I establish my rights to any costs, I shall be entitled to an amount equal to interest on the amount thereof at the same rate I have to-day paid you (5 per cent.)” The defendant at the same time wrote to Mr Finn in the same terms with reference to the settlement of the action brought against him by the plaintiff Toko Itihara. To determine the bona tides of the defendant’s excuse for the claim which he made to retain the plaintiffs’ moneys; in connection with a general claim for costs, and of his subsequent excuse for paying with interest the sums received by him on account of the plaintiffs, it ..'is necessary to examine the -accounts, which reveal/..some amazing facts. The total sums allotted to all the Natives —twelve in number, including the plaintiffs—whom the defendant claimed to -have represented, amounted to £1892 lls 4d. Of this sum of £1392 lls 4d, sums amounting to £'1124 15s 5u have been paid to the defendant .under orders of the Validation Court for lxis taxed costs as. representing; these. Natives in- the proceedings in the Validation Court. The balance of £767 15s lid was paid to the defendant »s the agent of the Native owners. The defendant has in these proceedings, put in his bill of costs for costs, alleged to be'owing to him under the head of ‘General charges re Mahia lands chargeable- against Natives only and not recoverod "from . Receiver.” It- may be dcitbtful whether any part of this claim bahube. maintained, and fairly certain that,/even; if so, the claim would, upon taxation, be considerably reduced. The amount so claimed is £253 19s 3d, of which the defendant admits having received £34, leaving, as he alleges, £219 19s 8d still owing. Assuming that this claim could be maintained in its entirety, the amount which the defendant will .receive out of the total sum of £1892 lls 4d payable to the Natives under the decree of the Validation Court, stands at £1378 15s Id, the shares of the twelve Natives being representated by the modest sum of £513 l£>s 3d. But this is not all. The ctefendant’s costs were upon taxation reduced by £339 16s Id. The actual claims which he made against the Natives for whom he alleges that lie acted Ahtli the most extensive powers, if allowed; as; he made them, would 'leave them out of the sum of £1892 lls =d, to which they were entitled, the munificent sum of £174 Os 2d. . It is worthy or remark that included in the defendant's first- bill of costs as taxed at his ;pwn ; instance ,as between mid client, was a sum of £9B 5s 4d for the hosts of taxation alone, and that lie was actually allowed and paid in respect of ■this claim £B4 5s 2d, although far more than one sixth of his bill was taxed off, ar.d he ought,.pursuant..to the- statute, ; not only not to have received one farthing on that account, but xo have p?ua the costs of the solicitors .who by the hrder of the Validation Court vveie charged with'the taxation of the dei-eii-dantls bill. This surely must have been ah'oversight on the part of these, ger.tie-•rea.,-1. It is--also not unwor thy of re-mark-that the defendant 'swore m supp cof this first bill of costs that ne acted as solicitor .and also as .Gbunsje. nor the Natives, although, the wuole ox the work* in respect . of. which he . £ld3s 15b 4d, and was allowed 9s 3d; was performed in tne- six ;mondis V- m the 30ih of January. 189 p, .0 elm Vc /of . August -of the some year, and Not-duhug tliis period' he ■ was' iw.t a 1 • n p Pl . of the bar. For six work in this one matter lbs. already received £734 9s 3d. InNiiht upon part of this sum, ana sunse-;-;-uortJcosi:S;;dia:ve,/hro:ught. tne. Town mS'M ‘ ...L ■ ffiS WHO* 1"-; .A 1

Assuming, however, that all this is far more satisfactory than it appears to me to be, and that the defendant’s claims as I' have stated them were and are fair and reasonable, it ha 3 still to be determined how far those claims justified him, under color of a general lien for costs, in retaining the plaintiff’s moneys, as to part for over ten years, and as to the residue for over nine years, until he was compelled to part with them by process of this Court. The defendant, as I have already said, received moneys for twelve Natives, again all of whom he makes this claim. On the 6th of November 1897, the defendant received on behalf of those twelve Natiyes £437 Is sd, the shares of the plaintiffs; in this sum amounting to £77 5s 9d. His general costs at that date amounted, according to his own untaxed account, to £35 Os 2d. After receipt on the 10th of March 1899, of further sums amounting to £330 14s 6d on behalf of the same Natives. the total sum then in the defendant’s hands belonging to the Natives was £767 15s lid. His general costs at that date, according to the same vmtaxed account, amounted to £lO2 7s 7d. In other words the. defendant claims to have had the right to retain on the 6th of November 1897, and ever since that date, £437 Is 5d belonging to the Natives, as against an unrendered claim for £35 Os 2d. Similarly lie claims to have had the right on the 10th of March, 1899,. to retain the sum of £767 15s lid (in which the plaintiffs alone were interested to the extent of £135 16s lOd) as against an unrendered claim of £lO2 7s 7d. Comment is needless. There is no evidence that the defendant has accounted ’to the other Natives interested in tlxe fund, though he had no doubt made some payments to some -of the Natives. - Even if it could be sliown that the defendant lias paid to evory one of the Natives, other than the plaintiffs, the full amounts received by him on their behalf, this could not justify the defendant’s action with regard .to the plaintiffs. Claiming a. lien upon the funds of all the Natives, in respect- of an alleged' joint liability by all, he certainly could not throw the whole burden of the alleged joint debt upon the paintiffs, by paying the other Natives of the amounts received on their behalf, and retaining the • amounts received on account oi the plaintiffs. . And, even if he could, when his duty and liability to account .to the plaintiffs, for the moneys received on their behalf on the otn of November 1897, ; and 'the 10th of March 1899, arose, there, was still, on each of those dates, after deducting in full the amount of the defendant s alleged claim against all the Natives,- a substantial sum-due.to the plaintiffs. I am forced therefore to regard the excuses by which the defendant attempts to justify his retention of the plaintiffs’ moneys for so many years, and to gloss over his subsequent ment of those moneys with interest under compulsion of the process or tmt> Court-, as merely subterfuges. . It is to be regretted m the interest of the defendant himself that, having thus abandoned his untenable, claim to retain the plaintiffs’ moneys, in consequence obviously of good advice, he should very shortly afterwards have renewed his uu-.-justifiable claims upon the plaintiffs. It is probably not strictly necessirv to determine whether or ■ not the defendant was originally retained by the plaintiff Ahenata te Maire, or by ramihana Waitatakino. All that there is to show that he was so retained is a pediment in Maori; the English translation of which is said to be:—“l6th lebruarv, 1895.—T0 W. Douglas Lysnar, solicitor, Gisborne: This; is an authority to you to act as our in the application of the Honorable James Carroll and Wi Pere. in the Validation Court, Gisborne, m the matter of Law apata North No. 1,” etc., veral blocks, including Nakutaitrua, aim Moutere No. 1. This document, purports to be signed by the husband of the plaintiff Ahenata te Maire on her behalf, and by the wife of Tamihana hai tatakmo. There is no evidence that these persons had any right to) *itn■ a document on behalf of the 1 1- -Ant Ahenata te Maire, or of Tanniiana A aitatakmo: or that they cud m imp mgn this document. The. plaintiff Ahenata Maire swears that she never letc aecl the* defendant*, or autborisea him to appear for her.- An affidavit prepared y the defendant, end sworn by Ahenata ptvf “3 “ bA't hJAs nothing. In the 1A SiS it t not In the matter of the proceedings in quest.on m the application with reference to which the warrant is alleged to have been given, but in the matter of an application for a partition. It is made over ten year, later than the alleged 'retainer. It shows, nothing hut that the plaintiff Ahenata te Maire and other-Na.tives .desired a partition. It does not .show that she was party to any application made by ar.v person who can speak to the facts, whether party to the proceedings, or not.. If it were necessary I should be prepared to hold that the. Pjainbiff Ahenata te Maire never retained tne defendant as her solicitor in the matter. Tamihana Waitatakino died some xeai, since! If he retained the aefendant, the retainer was determined by ns death. There is no suggestion that the plaintiff Toko Itihara ever retained the defendant. But even if it could be he.d that both the plaintiffs retained the defendant,- there could be no doubff whatever that they could determine hjs i - tainer at any moment, and without makinp- any provision to meet his c.aim. There can be equally no doubt whatever that if there -ever was a retainer, it vundetermined by the proceedings brought by the plaintiffs against the defendant on the 10th of. February 1908. The defendant . swears that he did not so understand the effect of what was done, but his letters of the 25th of February 1998, the day of the settlement of the actions brought against him by the plaintiffs^shows the contrary. lie there purported to safeguard his interest with respect to a disputed claim; fo r alleged past costs, but made no/; suggestion whatever that he had the right to liw volvo these plaintiffs in a liability for future costs. Nevertheless the defendant persisted later in claiming that he was the solicitor, of the plaintiffs, and in pretending to,appear as,their Counsel in the Validation Court. On the 20th of August 1908 he filed a notice, purporting to be on behalf of all the . Native ' dw-ners/ofi the biofks ip which ; the plaintiffs are interested, and lie persisted in claiming to appear for them in the Validation Court, in the proceedings in connection 'with -.which tint, application was filed. On the 19th of May 1908 Mr Finn,/as solicitor for the plaintiffs, filed a notice of motion in the Validation Court.' This motion came before, tile Court,.a nd/wasadjourned ; from time .to time. It was finally disposed of oil tile 17th of February last, when, in con-, sequence of the attitude taken-by the ; defendant,, it /was dismissed; unheard; Upon that application the . defendant -appeared,'both in per&pn, apparently as Counsel for. the plaintiffs, and by Counsel for himself. /The' minute; made-. by the-Judge of the ry.idatiom Court for his judgment is as follows/:/There 'ap-; pears to. be. a dispute-betweeivtwQ:-Conn-

sel as to which lias the right to appear. Mr Lysnar filed an appearance in accordance with the regulations, anil claims that he is still entitled' to appear, besides which he lias unsatisfied liens on < the proceeds. Mr Finn, on the other hand, claims that he is retained, and has sufficient authority to appear. It is impossible for the Court to .settle the differences in dispute in this application, so that the Court lias an application by a person not solicitor on the record at present. The application will be dismissed, as the Court is not satisfied that the solicitor applying has superseded in the regular manner the solicitor on.the record.” ; The wrongful act of the defendant has therefore, for the present, deprived the plaintiffs of their right to have their claims put forward on their motion disposed of by the Validation Court. In these circumstances the plaintiffs come to tli:is Court, praying (1) An injunction to restrain the defendant from appearing and acting as their solicitor, in the validation Court: (2) £99 damages;- (3) General relief. The defendant has set up various defences, all equally untenable. First lie says that he was retained by the -plaintiffs; that costs are owing to*him by the plaintiffs; and that iris retainer has never been cancelled. I have already disposed of this. If it is necessary, T find that the defendant w-as never retained. If he ever w*as retained, I find that his retainer was cancelled in February 1908. The next defence set up is that it the defendant was not retained by the plaintiffs thev have acquiesced in his actions from the year 1895 to the year 1908. If -this allegation were established it is immaterial; but there is no evidence whatever of such acquiescence. Then the defendant sets up that the. question as to whether or not ho is solicitor for the plaintiffs has been determined by the Validation Court in his favor, and that this Court is bound by this determination. . This proposition is absurd upon its face. The Validation Court might probably, in the courso o.t its procedure, determine whether or not,, at any particular stage, a solicitor, claiming to be heard on behalf of a litigant, w as entitled to be so heard. But neither the Validation Court nor this Court, nor any Court, could determine that the retainer of a solicitor could.not be withdrawn. Tins is what the contention comes to. But, even it the Validation Court had the fantastic power ascribed to it, it has never even pretended, t-o exercise that power. On the contrary,; the evidence of tne Judge is that he declined to determine the question in dispute between the defendant and Mr. Finn. Lastly the defendant says that the matter is one exclusively within the jurisdiction of the Validation Court. No argument has been advanced in favor of tins contention. In my opinion it is plainly unThe plaintiffs will have judgment (a) For an injunction, as prayed; (b) fior twenty-five pounds damages; (c) tor the costs of this action, as on claim tor £250.

Mr Lysnar yesterday informed a “Times” reporter that lie intends to appeal against the above judgment, and pointed out that he considers His Honor, Mr Justice Edwards, has misunderstood the position on certain points, including the payment of costs which ■were incurred in respect of 9 blocks or land worth about £IOO,OOO, and not on land or assets worth £iS92 lls -id.

FANNY ROSE HOWIE AND OTHERS V DAVID JOHN BARRY.

PLAINTIFFS NONSUITED

Mr Bartoir, S.M., also read the judgment in the case of Fanny Rose Howie, Thomas Richard Porter, Francois Henri Porter, Isabella Hamilton Ada paliympie, Donald Kerr Porter Minnie Kathleen Perrv, Raymond George* Poitei, and Heri Patene AVaiti, and the said Thomas Richard Porter as trustees for minors Tanara V aiti and Paiaiata Rarere versus David John Barry, heard before Mr Justice Edwards at _tlie sittings of the Supreme Court held in Gisborne last month. The action was brought by i Fanny Howim and others for the recovery °i vent under a lease registered under the Land Transfer Act, _ and His Honor found that the plaintiffs had, at the time when the action was begun no legal estate or interest in the land, and that they could not therefore maintain an action for recovery ot possession of the land of for recovery of rent. The plaintiffs would be non-smt-ed, with costs according, to scale. _ Mi. Burnard, instructed by Mr. jSievwnght, for plaintiffs, and Mr. J. V . Nolan ior defendant. .