Meeting held on
TAIPINGSHAN RESUMPTION
ARBITRATION BOARD.
FINAL BITTING.
The Taipingshan Resumption Arbitration Board, consisting of His Honour Mr. S. J. Ackroyd, Acting Chief Justice, Mr. E. F. Alford, and Mr. W. Danby, met on Friday the 1st iust, for the last time.
In stating the award in claim No. 8 his Lordship said-This is a claim for resumption of a temple and it having been proved that it was let on a repairing lease (excepting firea and typhoons) for 15 years, of which over 14 years had still to run, at a rental of $70 per month, it is impossible for us to overlook this fact. In assessing this award on rental we do not forget that taxes have been evaded in the past, aud, taking all the peculiar cironmstances into consideration, we award the claimant $8,000; but the Government of course have the option of avoiding payment by permitting the claimant to resume possession, in which case it is understood the cisimant withdraws his claim in toto. Costs for claimant.
WHO SHOULD PAY THE COSTS ? His Lordship-In three cases in which we gave judgment the other day we awarded a sum a trifle over the amount offered by the Govern ment and we reserved the question of costs, be- cause, according to the Ordinance, if we had given only the anm offered by Government we would not have been able to grant costs. As the claimants in these three cases have received so very little over the offer, and in one or two cases so much under what they claimed, is it right that they should get costs when, as I have said, if wo did not give that small sum over the amount of the offer they would not have had any coats at all?
148
Mr. V. H. Deacon, who represented Mr. Bruce Shepherd, then addressed the Court at con- siderable length, and argued that his client's costs ought to be paid. There was no set of oiroumstances in England precisely similar to the set created in the Taipingshan Ordinance, which was different from anything which ex- isted in the judiosture in England. Therefore be submitted they ought to argue by analogy, and as it were impress upon the Board the pro. cedure that ruled at home undar stafuta although it did not rule here under statuto, Tue Board would no doubt consider the position of the parties. The claimant was in reality in the position of plaintiff; of course there were no pleadings filed, no declaration, no answers; &o., but be submitted that the claim which was filed under the Ordinance here was in effect the same as a dopleration of a plaintiff in an ordinary action. He thought that reasonable, because they must bave some reasonable statute or other, and he thought it was reasonable to ask the Board to treat the claimants in the cases as plaintiffs. Counsel then quoted from various authorities to show that the winning parties should be allowed costs. He admitted that the costs were of course under the absolute control of the Board: the Ordinance was very full and complate on that point, Bata judicial discretion must be exercised judicially, and he poufidently submitted that the Board could not without some reasou deprive the olaimant of his posts. In default of any other rule being before the Board the Board mast gather a rule from one of the procedures in England. The point was which was the rula to follow ? The true test was, what has the clai. mant got? Has he got more than the Govern- ment offer? If he has he thought the Board should follow the Land Clauses Act 1949, and the Housing Act 1890. The parties were forced to come into Court, and would not have sold their land unless they had heen compelled.
His Lordship-You are not brought here. Mr. Deseon-We must come here unless we want to lose our money.
His Lordship-You can settle with the Direc tor of Public Works.
Mr. Deacon-That is what we have done, brit when the Government says "No, we won't give you what you want" what are we to do? The claimants were obliged to come into Court; they could not help themselves. We thought Mr. Cooper's offer too low, as it has been in a large majority of the cases which have soms before this Board. The general rule is that costa
the 1st March, 189.
570
7326
follow the event. That is my position today; I have obtained the verdict.
His Lordship-That is the difficulty of the Board. Has the party succeeding a right gat his costs? Can you say that you succeed when the Government offer you $13.200, you claim $19,000, and you only get $13,600.
Mr. Deacon-Yes, I do say so. Who is to lay down the line and say "Unless yon get so much for your property you shall not get your costs"↑ Every man has a right to get as much as he can. His Lordship-I distinctly deny that. No min has any right to demand more than he thinks his land is worth. If we saw that parties were trying to get, not how much the land was worth, but as much as they could, we should stop
it
Mr. Deason-Your lordship. I hope, dis. tinctly understands that I am not suggesting or contending for a moment
His Lordship-I am afraid it has been cOG- tended in this case,
Mr. Deacon-I do not want to be misunder, stood, my lord. The test of the case is not what a man claims but the result.
His Lordship-Instead of referring the costs to the Registrar cannot we fix the amount of posts F
Mr. Deacon-That is almost impossible, my lord. Look at the enormous lot of work done.
His Lordship-Suppose we thought you were pot entitled to all your costs f
Mr. Deacon-Your lordship is dealing with a question of principle and not with the amount.
His Lordship We were thinking of giving you so much. We thought your client's con qust not altogether wrong and of allowing you so much. We think we have a right.
Mr. Deacon-I do not think your Lordship has a right. If you once decide the principle that I am entitled to costs I shall leave them to the taxing master.
His Lordship-In one or two cases we have allowed so much for costs.
Mr. Deacon-That is not the case here; wa did not know it.
His Lordship-We have granted so much without costs because we have valued them at s certain amount and included them, and in doing that we thought the claimants had full value for their land,
The Attorney-General then addressed the Board on behalf of the Government, and said that in the first instanes the Board publicly an nounced that if parties made extravagant claims their costs would not be allowed. He hoped the Board would not go back
on its own decision. The cases groted by his friend had no more to do with this case than, if he might say so, the man in the moon. The rule was that the Board used its own discretion in the matter of costs. These parties in making Bach extravagant claims had disregarded the publicly expressed warnings of the Board and they ought to be deprived of their costs. It was all very well to say it makes no differerce and that everyone is entitled to get as much as possible, but the Government had had consider- ible difficulty in settling bases, zud there were only two cases in which costs had been allowed.
Mr. Deacon said the Attorney-General really implied that because a man had made a largər claim than the amount awarded he ought to be But s punished, and should not get his onsts. man could do no more than aot according to the very best advice he could get, and be must come into Court when he was advised that his property was worth more than the Go- vernment offered. On Thursday the Govern- ment made a very much worse casp. The cisim in one case was $11,700, the Government offered $1,003 which was inoreased to $1,500, and the award was $8,000.
His Lordship-The lease was not in that onge brought under the notice of the Director of Public Works,
Mr. Leason-Mr. Dennys tells me that two mouths ago it was brought fully to his notice. It is within the Board's knowledge that there have been very big differences between the offers and awards. If claimants have made mistakes the Government has made mistakes at loast as
bu
His Lordship-We are not called up at this jate hour to lay down any principle. We decide these cases on their merits, and on first consi- feration we thought there had been some exig- geration as to claims put in, and therefore wa were not willing to decide the question of cosią
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