CLAIM FOR POSSESSION

Bay of Plenty Beacon, Volume 8, Issue 55, 9 March 1945, Page 5

CLAIM FOR POSSESSION

PLAINTIFF'S CASE DISMISSED

SHOPOWNER'S ACTION FAILS

The fact that he had accepted rent since the expiry date of his formal notice to was ruled by the Magistrate to constitute sufficient grounds to negative all his chances of success in an action for possession by .Joseph Plamus (Mr B. S. Barry) in the Whakatane Magistrate's: Court last Tuesday. The case which was a lengthy one and produced an abundance of legal argument for and against was determined by Mr E. L. Walton in favour of the defendant company (Messrs Adams Bruce?) with costs against the Plaintiff. For the defendants Mr J. S. Alexander, put. up a strong technical defence on the grounds that his clients after occupying the shop on the Strand for seven years and meeting all obligations in this respect were now required to vacate the premises with no prospect of any other suitable shop being available in the town. Mr Barry said that the original owner (Mr E. Armstrong) with whom Messrs Adams Bruce had their first had sold his interests- to J. Plamus, who desired to make them over to another tenant following his unsatisfactory dealings with the defendant. company with regard to rent, which had been reduced in the earlier part of the war by the owner to. £2 15s weekly. Details of the negotiations were given by Mr E. Armstrong who was not. only the original owner but also the solicitor acting for Plamus in the initial stages of the present action. It was shown that, in response to representations of Messrs Adams Bruce in 1942, the. rent had been lowered from £3 15s to £2 15s on account of war conditions. This money had been paid, regularly into witness' account by the defendants. When the sale took place he had acted on Plamus's behalf and following correspondence over a lengthy period had served formal notice to q'Mt by the end of last year. This notice had not been complied with and defendants Avere still in possession. To Mr Alexander witness admits ted that, there had been no variation of the letter instructing the defendants to continue to pay rent into plaintiff's account at the bank. There would be no denial that this had been done regularly and punctually. He had on Plamus's behalf written several times urging that times were now better and that the rent should be raised,, but the defendants clainrSd that this was ijot the case. However when notified that another prospective tenant was prepared to pay as much as £4 weekly, they had agreed to come back to the old figure of £3 15s providing a 3-> year lease was granted. A further letter from the prospective, tenant offered £4 10s to which defendants had offered to pay whatever price Avas agreed upon under the Fair Rents Act by price stabilisation. This had not been agreed to by

Plamus

Mr Alexander declared that Messrs Adams Bruce felt slighted by the fact that after such a long tenancy they were being made the victims of a situation for increased rent. Every offer they had made had been met by a counter-deniand for a still greater figure. Their iinal offer to abide by a decision under the Fair Rents Act had been ignored. They were prepared to do the fair thing but objected to> having a pistol at their heads to pay an exorbitant rent. Siispe that date they had continued to pay the sum originally agreed upon, their cheques being regularly accepted at the bank and receipts issued (produced). Counsel quoted legal opinions which showed

that acceptance of. rent was tantamount to the waiving of a notice to quit by the owner and claimed that his clients were entitled to take advantage of this technical defence in view of the unreasonable attitude of the plaintiff. Mr H. C. L. Buxton ? Auckland manager of the defendant firm,, gave evidence setting out the position, and added that as a result of the war rationing his. lirm had been cut down to 50 per cent of its chocolate manufacturing 65 per cent in biscuits and cake. They were still willing to ijay a fair as there were no other vacant shops available in the town. To Mr Barry } lie admitted that any delay in the proceedings had been due to the action of his lirm. Mr Barry declared that under the same legal opinion quoted by Mr Alexander the acceptance of rent

could only be taken to mean, the waiving of a notice to quit when there was a new contract express or implied regarding the tenancy. The. Magistrate: You can't take it as badly as that. Mr Barry: I submit that all the actions of the plaintiff show that there has. been no effort to give any new tenancy. The Magistrate: Why didn't he return the rent in January then. "I don't know that, this court should shed tears, over either side in this case" observed Mr Walton. "Each has been striving to improve his own position. I don't know that there is anything wrong in that, The plaintifi has made a slip in accepting his rent three times, after giv-< ing notice, to terminate. I think the payment of that rent in the circumstances establishes a new tenancy and judgment will be for the defendants. Now the next thing I suppose will be that you will start all over again?" Mr Barry: Yes Sir..