COURT OF APPEAL

Gisborne Times, Volume XXVII, Issue 2552, 13 July 1909, Page 5

COURT OF APPEAL

A GISBORNE CASE

(Per Press Association.) IWELLINGTON, July 12. The Appeal Court'to : day began the hearing of the case of Lysnar v, Ahenata Te Maire and Rihara, a dispute which had come before Judge Edwards, who found Mr. Lysnar bad not been retained by plaintiffs, and who granted an injunction to restrain applicant from acting as respondents’ solicitor, and awarded the latter £25 damages. From' this decision defendant appealed, and the Hon. T. Hislop appeareil for respondents. Mr. Barnard, for -appellant, after stating the facts, contended that the appearance of appellant before the Validation Court was not as icitor for plaintiffs, but on bis own •behalf, in order to assert his lien for costs, and that he had stated to- the Validation Court he. had no objection to any other solicitor superseiling him, provided his name were removed from die record in a proper manner and his costs were protected. Mr. Burnard referred to the evidence, which was of great length, in support of this contention.

Continuing his argument, Mr. Burnard stated that he relied on the minutes of the sitting of the Validation Court in February, 1909, which were set out in the evidence, to show that when the appellant appeared before it he did not claim to be still acting for the respondents. In January, 1909, Mr. Finn, a Gisborne solicitor, had moved the Validation Court on behalf of tho plaintiffs and other Natives for ,an order for payment of certain moneys due to the Natives by the East Coast Commissioner. When that motion came on for hearing Mr. Nolan appeared for the Commissioner and objected to Mr. Finn appearing for the Natives, as Mr. Lysnar was solicitor for the Natives on the record. The Court thereupon refused to entertain the motion until notice had been given to Mr. Lysnar, and adjourned the motion to enable this to be done. Upon the motion coming on again, Mr. Lysnar was present, but did not address the Court. Another solicitor, Mr. Kirk, appeared, and stated that he represented Mr. Lysnar. Mr. Kirk, on behalf of Mr. Lysnar, addressed' the Court, and'the minute taken by the Court of his address was as follows "Lysnar claims to be still solicitor on the record, and is properly on the record. The position Lysnar takes up is that he has gone out of practice, and has no objection to any solicitor succeeding him, provided he is removed from the record in proper manner, and that his interest as solicitor to the parties is protected. He claims a lien upon the fund to be disbursed,” etc. Tho Court, after hearing counsel, dismissed the motion. Mr. Burnard claimed that the minutes of the Court showed conclusively that the appellant did not claim to act for the respondent.?, but, on the contrary, stated his willingness to retire, provided he were properly removed from the record, and. his lien for part costs protected. He had, in fact, apeared before the Court, not on behalf of Rhe respondents, but in opposition to them. There was, therefore, no ground for granting an injunction to restrain him from acting for the respondents. Mr. Burnard referred to the question as to the amount of the costs which- the appellant had charged the respondents during the time he had acted for them. The learned Judge in tho Court below bad commented severely upon the question, but it was contended that it -was quite irrelevant, and that the comment had been made upon wholly insufficient data. Mr. Burnard further contended that the true inference from the evidence. was that the appellant had been properly retained by the respondents.. The Court ought to presume such retainer from the many years of acquiescence by the. respondents. Air Burnard concluded his argument at 4 p.m., and the Court adjourned until 10.30 a.m. to-morrow.