A1 HOTEL.

Press, Volume LVII, Issue 17113, 7 April 1921, Page 5

A 1 HOTEL.

CLAIM FOR POSSESSION. 2 ACTION IN SUPEEME COTJET. His Honour Mr Justice Sim was engaged at the Supreme Court yesterday in hearing an action brought hy Beath and Co., Ltd., diapers, Christchurch, againrt "Walter Henry Overton, licensee of the Al "Hotel, for possession of the premises, and mesne profits at the rate of rent Teserved by the lease of the premises from December Ist, 1920, until judgment, alleging that defendant had neglected the place until it was unfit for habitation and had endangered the license. Mr M. Myers, with him Mr G-. T. 'Weston, appeared for the plaintiffs, and Mr M. 3. Gresson, with him Mr J. H. TJpham, for the defendant.

The statement of claim waa to the effect that the defendant, in July, 1917, obtained a lease of the premises of the Al Hotel for a term of 14 years from March 24th, 1916,' et an annual rental of £2OOO, reducible to £1473, undertaking in the lease "to substantially repair, cleanse, amend, and keep in thorough good order, repair, and. condition, the said hotel and premises, at his own expense." Plaintiffs alleged that defendant had continuously failed to repair, cleanse, and keep repaired and cleansed the said premises, but had kept and maintained them in disrepair and in a dirty condition. By reason of such disrepair and uncleanly condition it was alleged that the premises had been rendered unfit for use as licensed premises, plaintiffs accordingly being entitled to re-enter and recover possession of them.

The defence was a denial that "the defendant had committed any breach of covenant of the lease, either expressed or implied; that he had at all times done everything necessary to keep in force the license of the hotel; that the provision for re-entry erpressed in the lease was operative only upon a breach by the lessee of Fome covenant or covenants in the lease; that defendant at no time had failed to keep the premises in clean and in good repair; that defendant had not on any occasion been notified by the Licensing Committee that the license might not be renewed ur.kss certain alleged disrepair and uncleanly condition was remedied or that he had refused or neglected to comply with any requirement of the committee; that certain requirements of the Public Health Department "and Christchurch Fire Board were in the nature of structural alterations for which the plaintiff company was liable under the lease; that tho plaintiff company had failed and neglected to comply with such requirements', and by .reason of such failure and neglect the renewal of the license had become imperilled. As a further defence, the defendant alleged that, if he had made any default in the matter of repairing or renovating the said hotel premises, the plaintiffs and their predecessors in title had waived and acquiesced in such default in view of the intention of all parties to rebuild the premises so soon as tho permission of the Government could be obtained, and had caused the defendant to believe that it waa unnecessary to effect such painting, papering, or other repairs in the meantime. Defendant further alleged that. the. plaintiffs had failed to give him notice, specifying the particular breach of covenant complained of. In the event of the Court finding that defendant had been guilty of any breach of contract, he asked for such relief against forfeiture or otherwise as the Court might deem him entitled to. Mr Myers stated that the plaintiffs' case! wae that the defendant had persistently arid consistently acted in such a way as to endanger the license of the hotel. As a matter of fact, so gross had been the conduct of the defendant that even now 1 no .license had been issued for the hotel for the year beginning July Ist, 1920. Applications for ft renewal of the license had been made to the Licensing Committee from time to time, but had been adjourned.

His Honour: If that is the case, how oo.nld the committee endorse his license?

Mr Myers: I don't know; he ha* no license.

His Honour: It'e an extraordinary position. Defendant, said Mr Myers, had jjeglected the place until it was unfit for habitation. The kitchen had been allowed to get into a filthy Btate. The convenience and itß approaches had been allowed to get into a similar condition. It looked very much ao if defendant were determined to make all he could out of the bar and let the rest of the place go to rack and ruin. One of defendant's own witnesses before the Licensing Committee, Mr Gaithrie, •an arohitact, had stated that the main building had been allowed to go to rack and ruin, but was sound inside. That was, in,short, the plaintiff's case. • -

Edward Sydney Luttrell, architect, gave evidence to the effect that early this year, in company with. Mr J. W.- liaanlaud, a builder, he had made a thorough inspection of the Al Hotel. The building timbers of tho structure were, generally, very sound. The bedrooms were in a. very dirty condition —in witness's opinion they were /not fit to bo occupied. They looked as if they had not been painted for years, and the paper was water-stained and dilapidated. The passages were in the same state aa the- bedrooms. With the exception of the timingroom, which was in-good condition, the whole place was in a very dirty state. Some of the bedroom doors had no locks on them, and Eome had no handles. The gueste' bathroom- was in a. dirty state, and the servants' quarters also. The kitchen was in a very tad condition. The walla needed cleaning down, and the sink 3 and laider were in a

very bad state. The kitchen was rot a fit place in which to prepare meals- for anybody. The floor boards downstairs were "shaky" to walk on, either through wood-rot cr damp. The Wiater tank on the roof was leaking badly. The servants' bathroom was in a very bad state, the floor being rotten through negleot. The pan in the water-closet was broken. The condition of the premises was the result of long-continued neglect. The paEsage-wav leading to the urinal and the urinal itself were in a very dirty state.. "When witness visited the premises they were not fit to be used ae a hotel, owing to negleot. To Mr Gresson: When witness inspected defendant's place workmen were effecting repairs. Witness's chief objection to the rooms was the need for painting and jcpering. The kitchen needed re-modelling. '"

John Walton Beanlanci, builder, seated that he had over twenty years' experience lis a builder. Witness inspected the Al Hotel premises on January 31st, in company with the previous witness, and agreed in tho main with what hei had stated in his evidence. Tho bedrooms were not fit for human occupation. ' They appeared to have been neglected for some considerable time. The conveniences were in a shocking state, the smell from them being abominable. The kitchen was dirty, especially round the sinks. The walls, and the surroundings of the larder, were greasy, and showed that they had had no attention for some time. Witness would be sorry to think that any house or hotel used such a. place in which to prepare food. To Mr Gresson: Painting and papering of the rooms would have made a great difference to the place, but they alio would need a "clean-up." Leslie Hardie, Chief Sanitary Inspector for the Christchurcn City Council, gave evidence to the effect that he had inspected the Al Hotel premises from "time to time. Witness had always found the place to be in an unsanitary condition, due to absolute neglect. In 1917 there was a rat pest in the vicinity of defendant's hotel, ■ and witness served notices on the various firms in the locality to exterminate oil rats. Defendant made no attempt to comply with this order. The urinal was so dirty that ( complaints had been received from passers-by in Golowbo street about the smell from it. It was only by "pegging away" at defendaat that witness had been able to get 'him to carry out his (witness's) requirements. Thomas Guthrie Blakeley, Assistant Sanitary Inspector for the City Council, tk'so gave evidence as to the insanitary condition of defendant's premises. Samuel Ernest McCarthy, Senior Stipendiary Magistrate, Chxistchuich, and chairman of the Chnstchurch Licensing Committee, stated that in June last the members of the Licensing Committee inspected defendant's premises. Witness was not with i;ie Committee on the occasion of its vusit, but inspected the place about a lronth later. Tho kitchen and bedrooms were very dirty. The flooring of the kitchen »was rotte.->. Some of the bedrooms were ill-lighted. ThiM'e were net six of them hatitable. Tiie kit:h«T. was not a fit place for the preparation of food. In witness's opinion the promises .were in siioh a state that the Committee would hav-s been justified in refusing' to renew defendant's license. To Mr Gresson: The application which came before the committee was for a renewal of the license of the Al Hotel. There •was no application for forfeiture.

Henry Holland, engineer, a member of the Christchurch Licensing Committee, stated that he had inspected the Al Hotel premises in June last, for the purpose of verifying reports which had been supplied to the. committee. Witness l*d been chairman of the Epidemic Committee, and when ho vifiited defendant's preuiises he was simply shocked that such a state of affairs could exist in Christchurch. One of the first things that attracted witness's attention was a stream of water trickling down the staircase. There was a bath at the botttSm of the staircase to catch this water. The water had been trampled over the floors. The bedrooms were dingy, and were not fit to sleep in. Tie furniture and bedding were shabby. The room where the cooking was done was more fitted to be a scullery than a ikitchen. The upper sash of the window was- missing, and the rain was beating in on the girls. There was a sack of vegetables separated from the urinal by only a four-inch brick wall. Witness was shocked to think that food could be prepared under such conditions Upstairs witness was informed by the maids that the slops were usually emptied into the bath, to save the time of carrying them downstairs.

Harry Adolphus Cooper etated that _ he supervised "all repair work on the premises of the plaintiffs. premises pverJooked defendant's, ond witness had had ample opportunities of seeing the roof of defendant's premises. The roof had been allowed to get into a shocking condition. Charles Ogilvie, manager and director of Beath and Co., said that defendant refused to allow plaintiffs to inspect plana which he had bad prepared for the new hotel, unless plaintiffs agreed to pay half the cost. He did not discuss with defendant a pro-

posal that the top storey of the new building should' be reserved for plaintiffs. Evidence was also given by Kenneth Matheeon, a member of the Licensing. Committee, to the effect that the building was not a proper place for a hotel, and, by Horace Benjamin Gould, general secretary for New Zealand of the Commercial Travellers' Association, and a member of the Licensing Committee, who said he had never Been any hotel worse than the Al. Mr Gresson formally moved for a non-suit, on the following grounds:— (1) That the lease contained no covenant or condition, express or implied not to do, or omit to do, any act or thing whereby the license might be lost or forfeited, the only implied condition being that implied by the Land Transfer Act; -.!'

- (2) That the condition contained in the clause of re-entry did not justify forfeiture of the lease in the event of the committee refusing a renewal of the license as opposed to forfeiture, or lose of the license; (3) That the covenant to paint, paper, and repair had been waived by the predecessors in title of the plaintiff company, and by the plaintiff company itself by acceptance of rent, and by correspondence*, (4) That the plaintiff company could not complain of the defendant's failure to repair -until it had complied with the mandator section of clause 4 of the lease, and had given permission under clause 6; (5) If any breach of cvrcnant were relied on, notice had not been given * .His Honour said that the points raised by Mr Gresson could be considered later. Mr Gresson then traced the history of the Al Hotel since 1910, when defendant became the licensee.

Thomas Fletcher Telford, Health Officer for Christchurch, stated that he had inspected the Al Hotel premises on several occasions Bince March, 1920. As far a* dirtiness was concerned, it was not correct to say that the bedrooms were' not fit for occupation. The, main objection to _ the bedrooms was that they were not well lighted, and the wall-papers were dilapidated. Witness did not agree entirely with the evidence given regarding the state of the kitchen. It was not .lofty enough, and was badly placed. There was a coating 'of grease on part oi the walls, but this waa inevitable in a kitchen. Witness considered the kitchen, as it wa® when he saw it, a fit place in which to prepare food. If the alterations reeommanded in witness's report were carried out, the place would be sanitary and habitable'. On tho occasion of witness's visit' the conveniences were quitesanitary. Generally speaking, there was nothing wrong with the drainage system oi the hotel. . .

Mark Kershaw, Senior Health Inspector for •the Canterbury-Westland district, said that he inspected defendant's premises on several occasions. He had'found evidences of neglect on some occasions, but had never seen the bedrooms in the condition described by some of the witnesses. Witness would have no hesitation in sleeping in them. Henry James Lack, foreman for James Blogg, contractor, gave evidence as to laying n new floor in defendant's kitchen in 1917. The roof was not an old one.

" Waller Henry Overton, the defendant, stated that he entered into possession under the present lease in Jlarci-, 1916. At the time he entered into the lease ha knew what the condition of the premises then was, having been lessee, since 1910. There was then some talk of rebuilding, and a clause was inserted in the lease with reference to rebuilding. It was in 1917 that the question of rebuilding first arose. Witness discussed the matter with the Public Trustee, who was representing the other owner of the property, and offered to erect a. four-storey building at his own expense if he were granted a 25 or 35 years' lease. The Public Trustee was agreeable, and plans were prepared, but it was found impracticable to build at that time, The only adverse police report on defendant's place was in 1920. In 1919 witness, with MiFrancis Scott Rutherford, acquired a lrSlfinterest in the property. In March, 1920, the question of rebuilding was again discussed, but it was decided to do nothing until after the Juno meeting of the Licensing Committee. At that meeting - the committee were in favour of nothing but rebuilding. After the meeting representations were made by the Public Tnjßtea to the Board of Ofcade for permission to build, but this was not obtained. Subsequently the plaintiffs acquired a half-interest in the property. .Witness discussed the matter of rebuilding with Mr Ollivier, chairman of directors of the plaintiff company, and was informed that plaintiffs were agreeable, provided they had the top floor. To this witness would not agree. Litigation followed, as a result of which the Supreme Court ordered a sale of the property, and plaintiffs bought it. Witness eubseqilsntly received notice from the plaintiffs of the termination of his leaee. To Mr Myers: Witness had made arrangements to finance the new building, which he had to erect Mr Wood, ot the National Mortgage and Agency, Company, had not bid at the auction sale of the property on behalf of witness and Mr Rutherford. Mr Hoban had no authority to say at a meet-

ing of the Licensing Committee that over £36,000 had been bid at the auction sale on behalf of witness and Mr Rutherford. To his Honour: The estimated cost of the building which witness proposed to erect was from £40,4100 to £15,000. To Mr Myers: Witness had.not asked the Public Health Inspector to make his report as "hot as possible" so that the place would be condemned.

This closed the case for the defendant. Mr -MyeTs called Cecil Claude Morton OHivier, director of the plaintiff company, who outlined negotiations between witness, on behalf of the plaintiffs, and the defendant and Mr Rutherford. Witness, as a result of these negotiations, came .to tße conclusion that defendant was not serious in the matter of erecting a new building. Defendant and Mr Rutherford offered the plaintiffs their half-share of the freehold and goodwill of the lease at what witness considered an exorbitant figure, £26,000. As a business proposition, defendant's proposal was no good to the plaintiffs. After the last meeting of the Licensing Committee it was found that the license was being endangered, and plaintiffs gave defendant notice of the termination of his leaso.

This closed tho case for the plaintiffs,

It was decided io take the legal argument before the Full Court in Wellington at a date to be arranged. The Court then adjourned.