CLAIM FOR POSSESSION

Bay of Plenty Beacon, Volume 08, Issue 89, 13 July 1945, Page 5

CLAIM FOR POSSESSION

OTAKIRI FARMER'S ACTION

LEGAL PROCEEDINGS FAIL

FAULTED ON TECHNICALITY

Protracted 1 court proceedings in the Whakatane Magistrate's Court last Tuesday resulted' in a claim for possession of a house by the owner Allan Woodberry (Mr J. Cooney) against Eva J. Tickner (Mr Otley) being negatived on the grounds of the wrong assumption by the prosecution in citing Mrs Tickner as tenant instead of her huswho had originally taken over the cottage concerned at a rental prior to his marriage.

The case furnished an interesting test of the Fair Rents Act as it applied to the wile of a man serving with His Majesty's Armed Forces, and drew much legal argument and counter argument from counsel of both parties. Mr Cooney introducing the case for plaintiff said that it had been particularly hard on his client who was a sick man and who was endeavouring to find accommodation for a aharemilker in order to carry on with the herd whilst his son was away in the Air Force. Defendant had in the first place tacitly agreed to leave\ the housie on July 1, 1944, but apparently on that date decided to remain there under the protection of the Fair Rents Act. His client had purchased the house, lor the sole purpose of finding accom-i modation for a and following a breakdown in health. All lqist year lie had been forced to carry on on his own and now he sought the authority of the court to take possession. Mr Cooney added that defendant was a married woman whose husband was away and who worked in the Rangitaiki Dairy Company's office. The house was vacant all day and \yas urgently needed for a sharemil'ker with a family. To his client's knowledge defendant had been offered alternative houses but had turned them down. Mr Cooney went to some length to emphasise his grounds, for maintaining that the Fair Rents Act, under the circumstances could not apply in the present case, owing to defendant's mutual termination of the tenancy \Wth the plaintiff, when he had given her four months notice. This he contended comprised the legal 'estoppel' which nullified all pretense of protection.

The plaintiff in evidence, said he was a farmer of 28 years standing. His son in the Air Force had his wife and three young children lining in one cottage on the farm, whilst his own family liv,ed in the other. 111-health him last year to seek a shareimker, and rather than go to the heavy expense of building he had purchased two cottages on adjoining property,, both of which were occupied, one b£ the defendants. He had reached a friendly understanding with Mrs Tiekner to vacate the house on July 1, last year and on this understanding had secured a suitable sharemilker. When however he learned that defendant. did not intend to leave, he ha«d served formal notice. In the meantime his sharemilker had been forced to live with his family, and later on left when offered a job on another farm with separate accoin-

modation. Defendant had taken the stand that her husband was a soldier who was just as entitled tojprotectioii oJ' the law as anyone else 1 and had. stayed on despite all he ' covbkl clo. Plaintiff mentioned a house which had been offered her by I Mrs Murray which she had rejected, . and also a house, in Edgecumbe bet longing to the Company, and csi pecially built for employees, which ) she had failed to apply l'or though - it had been brought to her notice - in ample time. e To Mr Otley plaintiff said that - he had decided to put his daughters in-law in the other cottage, in order e to give her a decent home, but re-1 v quired Tickner's house for the shareo milker. He was not aware that Mrs Tickner had made any effort what- 1 :r soever to secure a house as an altert native. ti Albert Edward the shareri- milker who was hired bj r plaintiff •e gave corroborative and [r added that a fortnight before he was due to enter Tickner's house he. had -ought permission to measure up the

oor for linoleum and carpets

William A. McCracken, Chairman of Directors of the Rangitaiki Dairy Company, stated, tliat defendant was employed by his company ? which owned a number of houses for the benefit of its employees. In 1944. he knew that a vacant one of these houses had been brought to defendant's notice but there had been no application fiom her. For the defence, Mr Otley relied mainly on Section 21 of the Fair Rents Ao4 and the qualifying clause making all subsequent legislation non-effectual. He contended that there had been no termination of tenancy in the true sense of the | word as far as defendant was concerned. After the expiration of the formal notice served by plaintiff tenancy became, purely statutory. Counsel also pointed out that proceedings had been taken against the wife of the actual tenant, whereas, to serve any purpose, the original tenant (her husband) should have been contaetcd. The question of 'estoppel' did not overcome the provisions of the Fair Rents Act.

John Edmund Tickner, husband of defendant stated that he had served three years in His Majesty's Forces in New Zealand, first being trained as an artillery man, and later being transferred to the temporary staff of the New Zealand Medical Corps. He related how he had iirst rented the house before Mr Woodberry made his purchase. There had been no change in tenancy as far as he was conccined though his wile had paid tlfe rent on his behalf. He added that his wife had taken steps to find another house but could discover nothing] suitable. To Mr Cooney, he admitted knowledge of the engaging ol the sharemilker by plaintiff, and also that he was expected to vacate the house by July 1. This however, had not been possible. At the conclusion of the evidence, the Magistrate said that it had been proved fully to his satisfaction, that Tiekner was the tenant although plaintiff as a layman had been led • to believe it was his wife. In view ' of this fact, judgment could not sucI ceed in proceedings against the pre- ; sent plaintiff. The case would be I dismissed wjth costs against the ; plaintiff.