LEGAL BUT NOT HONOURABLE

Chronicle (Levin), 26 August 1947, Page 7

LEGAL BUT NOT HONOURABLE

press -Association)

I JUDGE'S COMMENT IN COURT INJUNCTION CASE

(Per

CHK1STCHURCH, August 2o. | "I am unable to hold that defendant | lias done or is doing or is threateniiig | or intending to do wliat he agreed not. i to do.. The utmost that can be said is I that he has assisted his wife to do what J he agreed not to do. No honourabie | man would have done that and no 1 honourabie man wouid, if he could help | it, allow his wife to do what she has | done and is doing." _ | These words from a judgment by | Lord Lindley, were quoted by Mr. Jus- | tice Fleming in the Supreme Court = today when giving judgment in a case I in which George Stanley Holland, store- | keeper, sought an injunction restrain x ing David Malcolni Macfarlane, store- 1 keeper, from carrying on business in j opjJosition to him. Holland also claim- | ed £500 as dauiages. - "I adopt the words as applicable to j the circumstances, " ,said his Honour. j Plaiutiff was represented by Mr. J. T. ? Watts, and defendant by Mr. E. C. j Champion. j ln his statement of claim plaintiif j said he was a groeer at 20 Riccarton j Koad. In November, 1942, he was j called up for military service and he j suecessfully appealed for defendant j who vvas then in eamp, to carry on the j business. It was agreed orally that de- j fendant should lease the premises and j be allowed the benefits of the business • during the tenaucv. ' Defendant agreed j with plaintiif that he woiild not carry j on the business of a groeer or geuenu : storekeeper witliin one mile for live ! years from the termination of the J tenancy and would retire from the busi- j .iiess at 20 Riccarton Road witliin one , year after the cessation of hostilities. I Defendant vacated the premises on j •June 7, 1947, and siuce June 9 had carried 011 a grocery and general store at I 27 Riccarton Road which was across i the street from plaintiff's premises. Plaiutiff claimed that he had 345 registered eustoiuers aud defendant took 300 of tliem with him. Plaintiif sought an injunction to restrain defendant from carrying 011 the business at 27 Riccarton Road and from soliciting plaintiif 's eustoiuers. Defendant denied that he was carrying 011 the business of a groeer or general storekeeper at 27 Riccarton Road but said he vvas employed tliere as sliop mauager for Riccarton Provisions Ltd. He had reached an oral agreement with lilaintiif to purcliase plaintiif 's Imsiness but phiiutitt' later repudiatcd it. He J'uithor stated that in August, 1940, plaiutiff* starled Imsiness in opposition to defendant in premises adjoining those leased by [daintiff to defendant. "On the question of rectification L consider tliere is not sutbcient evidence to just if v me granting the rectification asked for. Tlie question as to whether or not tliere has been a breacli must depeiul 011 clause 13 of the agreement to lease. It states that the lessee is not to carry 011 the -business of a groeer aml/or general storekeeper witliin a radius of oue mile, for' a period of live years frtnu the expiration of the lease herebv granted. • It i's uufortuuate that th'e festrictive coveifiint vvas dravvn ia sucli a skimpy nianiier. It closes only oue of ruaiiy gates. It is the worst dravvn restrictive covenant 1 have ever eome across," said his Honour after he had heard evidence from both parties. This was a Court of Law and not of morals but he eertainly thought that, in the (jircuiustances, defendant did a very wrong and shabby thing. Plaintiif served his country during the war aiul being eompelled to leavo his business, arranged with defendant to purcliase the stock and lease the shop foi the period of the war and for 12 months after the siguing of the armiatiee, continued his Honour. Tlie Ingislature savv ilt to pass legislation dealing with leases of that kind whicli had the effect of extending sueh leases. It seemed a pity to lum that the legislation did not exempt servieemeu from its provisions. Defendant not only took advantage of those laws — as lie was legallv entitled to do vvliatever the morality of it — but he also found an easv vvay to get round the restrictive covenant, said his Honour. Defendant deeided to talk it over with his relutives aud a private compauy was fonned with a eapital of £1000 of which defendaiit '3 wife held 400 sliares, his sister 300 and his cousin 300. With that uioney the compauy purcliased defendant 's, stock in trade and set up 111 coinpetition just across the road. Still, he vvas unable to iind that defendant had coiuniitted a breacli of the law or breacli of a ' ' badly dravvn covenant." Defendant was only tho manager for the compauy, said liis Honour. He then qiioted the remarks given above und gave judgment for defendant. "Hut I am justiffcd' iu disallovving him costs. No order will be mude for costs," concluded his Honour.