NODINE CASE AGAIN.

Dominion, Volume 3, Issue 924, 17 September 1910, Page 14

NODINE CASE AGAIN.

ATTACHMENT MOTION,

SOME FURTHER COMPLICATIONS.

NEW LEASE TO BE DRAWN,

Tho litigation, between James Alexander Hannah,- of- Wellington, and Charles Nodino, also of this city,; which has;-occupied tlio; [attention of tho Supreme Court hero, for some time past, ill regard to the leasing of certain .premises' in Lamhton Quay, -was ad- > vanced a further' stage yesterday morri.jrig, when the.Ghief/Justice sat to hear a .motion':on behalf of .the plaintiff for leave to issue a writ of .attachment against the. l; defendant, on,, tho ground 'th'ati'he'?had. faile'9 tor comply, with a previous .' order '"oft the' Court him to execute'a'lease in. respect of tho /■premises'!an" question;-', : Mr.' A. Blair' (Chapman. . Skerrett, Wylie; and'Tripp)' appeared m support oftho motion,' a lid tho defendant was represented by. Mr. Aloxaudei Dunn. , : ': The Chief Justico asked counsel for, tiie'defendant. what he .had to- say. It , appeared-, to '.him that .the 'Court was called npon to perform not an ordinary judicial l duty, but merely ■an administrative/duty. : Mr. Drinri :• Your Honour's judgment, as sealed/by / the; Registrar, /.was;. that, the "defendant' should sign/ a, form of leaso approved by the- Registiar. no say i that this : draft ■' was; drawn up by 'the Registrar, but that, the defendant was not present. i His Honour: Did he ask to be present I.''//i; //,, : : C : Mr. Dunn- I am not aware, but ho probably did.not. „ , • His Honour: Do you object that the draft, is wrong? ' - Mr. Dunn:, Yes. ' His Honour: Then why did you not .take'; out;;a,motion to; set:it aside and get"''it -aDienli6d ?::" Xt ; f slibiild. 1 uo oil this motion at all. ..• ,/:•.■„:■.- ~ Mr./Dunh:/I. say, that; tho .'fact that, it is wron'g-'is 'a dofonco. to tho motion foratfochiribrit: '.'..-U/tf'K Jy/v-;/;■' His Honour: Not if you did not at-tack'-'the /amendment. -If tho leaso .- is .presented/ to you, and you had . any reason' for-/not - signing ■ it i you. ought to have attacked it.:. - , -As, far as the affidavit; before, mo . is - concerned,, you do not' suggest:'that it is, improperly drawn 'up. : .If .'it, is, ; . you; should., lia-vb movoditne-Court-to amend:it. Mr.' 'Dunn It is submitted that on a 'motion for'■ attachment. wo. aIe ::: 'liberty-ito^sh6w,; ( thatithe;,conditions of; your Honour's judgment have not. been performed. .-Z , ' , 1 : "His % 'H , oiiour:- doubtrjoU" can do tliat; but if; ifis-'nierely 1 in the form of the lease yoii ought to have attackea it:- ; in ■.the r -'maimer .I :Btato.: :AVhat are. .your grounds? ; ;. : ,i■ Mr. Dunn:' Thoro are'four giounds ori- which .'this" comply vjitli the, agreement. The first to,Avhich. I would. refer : ; you 'is /iiv 'regard td'. th.e. ■ powerof" -re-oiitry. ; - .Tho instriictioiiß for; a 'leafcsay';''lpofre'K.of; re-entry .on 30 dajs' default." Now, - according ,to ''£K6I--3ray v '|J>j tliero is power - of,, re-entry. on ; ,30 days , default- of'payment jof're'nt, 1 iuidr- immediately on breach of any other covenant. ' , < His Honour:>Does.,not-that applyr Mr. Dunn: I submit not, because under-. Section:,, 99; of ~thp. , Land Transfer Act'tho power'; of re-entry;;oan. only ,be • exercised y oil < six inonthsV default of payment '.bf 1 rent or:-therobseryance of ; '■■■-Tlie^^(pgrcpsiimmediate; pb\ver,;"of J ; rerQn^ry?t^Pffs";bre^^ : --.;;ofv ;^any. 'tn® terms of the agreement-.tliero, ought ■to ho at least 30 days'_ '"default : before power of re-entry arises. ~. His Honour I see That is one point. , This is; a :Very wrong method of 'dealing ■tho;;,tliingi' ; ''.'You ought' to' have attended --before the and applied to have the .thing amended. That -is tlie propor- course. . to have adopted. t Mr. DunnWe hadino..opportunity. . ! His -Honour: You,had, a draft ,of, tho tleas6W ; '"This'-i? wrong;'it'-^ughtito;be so : and . "P '• ;.*>'! V- * V' 5 ' I t !■/.: I Mr Dunn- It is submitted it is for tho lessor to prepare a lease and get the Registrar's .'approval. ; , . : ■ HiS Honour j':Well;'. whati is the other, ;'poihli ? 1 : ; .v.f r vk • Mr- : Dunn i"I 'refer your Honour to. tho covenant, ..No., 3 oil, the second page:'; /'lit? case' -the-clemisod, premises : shall be destroyed^ ; or. so v damaged by fire or earthquake as. to.requiio lebuild:ing,;'tliis "lease J ahd : th'6 .terms . thereby, treated,'shall, absolutely ceaso and determine as at the- date iof such firo.or •earthquake happening.". „There ,is no "clause .in'.the .preliminary.,agreement.,or : instructions i for least to ; jiistify' : that; ■H is Hdiiour ; ls not: that: to your, ad-

vantage? ' '' Mr. Dunn:., It, is." submitted not,•.because by tlie' lease -and, the .agioeiuwit we ; have to' payv insurahcei all/ the ; time. ' ■ His -Honour.:'-The,,,iagreement provides; for.. a „ reasonable, of the rent" to cease until the /budding has been repaired. ■ c. Mr. 1 ' Dunn:"But'it-does,pot say that the lease is to! 'determine; arid -1 submit it Is most unfair /to"the,.lessee if the lease, is to' terminate on tho destruction by fire.' '• ' . Mi. Blair: We hayo got to pay tho insurance., • ■ Mr; Dunn: For tho first two years, and the tenant afterwards,. Now, tho third ground,': on:-which rl:; say the .engrossment docs not follow the ; agreement .is in > regard to tho alternativu covenant''against - sub-letting: .. "Not .to ' assign or v sublet'■,the/; demised'' premises' fir any part thereof"' without' hrst obtairiing' ,the it. consent Z of ' the landlord, such consent, - however, not to ho 'iinreasonably withheld m ;ease of. ii,: respectable - and /resporisible- p'orson not a boot or shoe manufacturer or Ycndor." -~ - ' ../ -

His Honour: Is:not that tho same? " Mr.* Dunn: Your Honour will see that under the lease tho assigns of .tho'le*see aro bound, but under the agree/ ment I contend that a- covenant like that does, not extend., to-the .'assigns. It is a covenant that does not run with tho lease where tho assigns aro not named, arid there -is .no'mention of assigns' in the agreement ; • therefore the les'so by binding the . assigns is not 'in .aceordahce/with. .the: agreement. , - His' Honour: I sen your point. Mr. Dunn cited the cases of Wilkie and a more recent,one, in which Staples' and Co; were concerned, .in support.He held that in. construing tho eovonant,/ the Court, was .entitled; to. construe it strictly. . ' Another point was that in the lease it was provided that the consent of the-landlord must be. in writing,- whereas,' according to tho agreement, there, was .no. such ' restriction. ; . Further, -..the leaso .provided that; the tenaiit„/wa3'not. to assign or .sublet "the whole, or any part, of tho 'premises," whereas there .was nothing 'inv^tlio:-'agreemeht,-/abbut : part." •If ,tho Court construed ' it- ' strictly, there.iwas ; not/the/ same reason ' why ' : tho:/deferidarit'(sh6uld'/-be''prejudiced/in subiettiug .a' .part ,of r tho. premises. It was submitted/.tha.tthe;'? terms of• the lease/ought ;to' fpllow/tlio, terms of the agreement."* There ■ was u futlher variation in regard /to tlio covenant to insure—it required that''the insurance was to .be taken out in the name of the landlord.

.. .His Honour": Suroly.r.'it is to .be in the name" of tbo'landlord; that is the Itedinaryjthing:'-' - 'Mr. .Durin :■ There is not an implied covenant in the lease on that head, and it is. submitted that, it ought to be in tlie loint names of landlord and tenant, ' ' ,

His Honour: If the landlord insures, what right have yo.u to the insurance money if you do not pay it? Mr. Dunn: The tenant lias to insure in the name of the landlord, and it is submitted that the Court will follow the covenant in the scliediilo of the Laud Transfer; Act, implying that it is to. ho in the joint names of landlord and tenant. ■ A further .point of variation: is. in reg Aid to. clause 4, on . page 2: "That tho tenant paying the rent hereby reserved-and observing and performing tho several covenants and stipulations®' herein on his part contained,-shall peuceaKly hold and: enjoy' tho demised premises duriug the said ternl .without; any interruption _by the,:.landlord or any. person rightfully;claiming under' or iii "trust tor him." , . His Honour: That is the ordinary covenant, is it .not? 1 D S ntt v|t ' s snbmitted that'under the: Land Iransfer Act we are .entitled, to - an /absolute , covenant—that is, by the. landlord and .those-employed by him. ' ' V - . .His .Honour : That, is realty what : is miplnsd. ..by law." He is ..not liable for. a .trespasser.-/ Supposing a trespasser broke into your store, could you sue him ? : ' Dunn: No, your Honour, but we sayfchat that would .exempt, the/landloid in tho case of title paramount . His: Honour ;. You have. got.it under the; .Lan'cl' Transfer Act. There' can be . no' fitlp paramount' to . what .'you got. by registration : ". ' ' '• Mr. Dunn: ;I say - that we are entitled to .an absolute' covenant., ■ ' vr.His Honour: 'That' is all that: itmeans. I-.- - v ..Mr. Dunn. On these grounds I say that'.this lease, is. not in accordance: with tho , agreement, that 1 the . dofond,.®nt';. was justified in refusing -to sign the lease, arid has not committed, any. breach of "your /HonouWsi brdor. .. '•; '■--His Honour: 1 do not know that/ He has got a leaSe ; draw,n 'up :by/the Registrar;. It was his duty if it was wrongly ■drawn. .up to hive at once brought-; the matter, before .'tlio Court.... /: '.. ,V 7 Mr.: Dunn: It ; is. submitted that. wher<»;.it'-is_ a. matter' affe'cting-'tho: liberty'of'the .subject—. ' -.. /" His Honour: You .need , not,/, talk aboutthat' :-inflxiencing'■ my /" judgment. Tho sole /question is. whether.; tho-. lease as drawn is proper. or • not,. . Pethaps what you/have] .shown shows,i.tho lease/is" 1 not '"strictly./in / accordance . with the agreement, but 1 ani only pointing out that you haye not .takeii proper ■ooMse:'''Vlt'.vm'a^'iße'itli , kt'-- : having; taken proper /iegal -'advice,' has made, that blunder. /It is only heaping costs I ,','upon himself--his; hot 'havjng it. .That is all. V' /' ./•. -V'v /. I'submit, lie/has/ not-'com-mitted a breach/ of, yoiiry Honour's .order. ,

y' His Honour: You say that; the.' lease is not in V, accordancewith./tho/'- agreement. •• /';:; ; ./-■■/..' / "- /■

■Mr. Blair: If, my. friend'is: content, to,'sigh -i whatever 1 -'alterations "/your Honour dirccts, I am cpnt'ent:;' but I say that', tho thing /is not - bona /,'fi'dej'' and is a mere pretext for/delay;,/ /,. : '.-•His '.Honour: AVhat do you say to that, : Mr.'/Dunn ?. .Suppose the leaso is aro . you/willing/; to sign the leaso then ? Or if you give security .'for -the,■.'rout; then I should 'not . ask you to /sigii the/lease'' at all. That. is. a fair-thjng to ask, to give every,'.clianco t<i Mi,, Nodine when ho appeals? ■: Mri""Dhnn:'- Under the peculiar; cir-; cumstances/ of this case, I am not instructed to give an undertaking'to that effect; '! '■,"/:;•; His Hor.onr : I do not know of. any that ', make" itj 1 diffepntj'/from / a'ny• .other caso . that comes before tho ' Court,. :/ '' ! / Mr. Dunn; I am simply.prepared:/tb appear/to'show cause on this iar-motion.': v/. '/;. :;■ ! ; /■: ''V >'• '-m' ■ His Honour,:. Aro you, not- solicitor on tho record?, !. . • //•'/;■; ..; : /Mr/.l)unh:i;Np : ,',the.!defeiidah'c'^ am ■ noti' prepared to /give/, any , under-taking,-.as:'to that. 7v-" / ■' ./': ■ His 'Honour: Very ivoll. I think there .are -,certain, points here ;in: regard : te v which r Mr." Dunn has a right .to iiavo 'the',lease 'amended, /and! the better-thing would /.be/to /sond 1 it/back l ' to' the" Regis-' trar •' • '* : '/Mr; Blair: I do say thatwe- are cntitled to/ the order. ' ;; ; //• His Honour: How are you V , , . Mr. Blair: Because, the ,lease has been':'settled by the Registrar. His Honour:, I quito' agree with yott that..it'/ought to appealed against,i/and that; the^ ''mere;;_fact/that: tho defendant' lias appeared in/person has led to all this ' trouble/ but .;, I>/<3p hot'/thinifi that '.you aro -entitled : if. the lease .is. riot in; accordance/with /the or;der." 'It :is/a' pin/point bt diiferen'ce,.',b ; ut it .-is . sufficient/.to create that.;, ./ .; Mr. Blair: If your Honour takes tho ordinary/.case where tho/term's of a ilease; are; settled,. thoro is/ such a .thing as waiver. The defendant know that ■ the/lease,"was being settled, arid^ : io had /an. .opporitinity. of-being present/. / . His.'Honour: Did you give linn notice?' . ' ..' /■': ; .

The Registrar: No one did; appeal, but I understood that notice had been 'given'; that it was'to be settled.' , : Mr.' Dunn:that he had' no notice. - ',: : ■■■'•':" ■' Mr. Blair:. W are perfectly indif-ferent.-as to -tte'terms: of the lease.• ''His Honour, observed that apparently the 'defendant had adopted the/present unusualcourse of/; get tiiig/"rid. of -; hia .liabilities, 1 ; ivith6ut/haviiig;'/adopted./tho proper legal method' of doing so, which would have • been, to have appeared before' /the Registrar,- objected to . tho . lease, and tho whole matter ought to have como-before the Judge, if ho dissented; ' /■;■'' / ./ / '/; ' • .Mr. Blair: It all means £15 a week added on to tho rent already duo, and our'chances of getting that* are pretty remote. .- His Honour said lie would order that tho ..lease be referred back to tlie /Registrar, to bo settled.-by him at ,12 o'clock on .the following day. Ho was of, ..opinion that the'- 30 ,days' .default/ must : apply to: all default, and that Mr. Dunn waia right there. In ease of -fire, it seemed to him that thoro was no power to determine, .the: lease, ,'and. if; ;tlie 'parties disagreed, that , they should go to arbitration.; As to, non-assigiiing or," Siib/letting, ■ he, did not - think there was-power to insert "assigns" in tho 'lease, because there was no provision in,.the agreement that included assigns, and it must bo. construed strictly.' Then,/he/: did; not think that it. was necessary ' that\the to should be in writing. In regard to tho insurances, he .was of opinion that it should be in the name of the landlord the first/two years, and afterwards in the joint ; names' of landlord ,and -tenant, if it was, paid .by the tenant.. As to',the covenant in respect, to 'quiet.'Vmjoyment, ho did not see any harm in ; that being put', in. -If Mr. Nodino did riot appear before the Registrar next day, the Registrar could settle the leaso, and after that the present motion could bo made. It seemed to him that the motion followed as a matter bf course. It was a mere administrative act, and there was nothing judicial about it. , Mr. Blair: Will it be necessary for us to tender another lease? . His. Honour: You had better. ■ Mr." Blair: Ho will keep out'of the way. . '/

His Honour: If. you can prove that to mo, personal attendance is not neces•sary.

Mr. Dunn: Do you dismiss the present .motion?

. His Honour: I dismiss tho present motion, but I give no costs because the objection ought to have been taken in a different way.