SUPREME COURT

Dominion, Volume 11, Issue 228, 14 June 1918, Page 7

SUPREME COURT

LANDLORD AND TENANT

LEASE AND RENT OF BUTCHER'S SHOP

In tliei Supremo Court yesterday His Honour Mr. Justico Hosking presided, and delivered judgment in tho case of Sam Haigh, farmer, Oreytown, against Janiea Wtlliain Dyer, formerly butchor of' Cireytown, now a 6oldier in camp, which was heard last week.

Jn giving- judgment, His Honour said the action ootuniericed on April 19, 1918. 'i'lio plaintiff Bought to tho sum of XH Gs. Bd. for two months' ront, due" on April 1, IDIS, under a <loed of lense from Mm to tho defendant. Hβ.also asked for a declaration, that the lease was now binding. Tho lease was of two distinct properties—one a butcher's shop, tho other a slaughtering pnddock. The leaso contained covenants by tho tenant to pay all\ratcs, taxes, "and assessments" in respect' to tho shop, tho plaintiff "paying rates" on the paddock. Tho loaso also contained a covenant by tlio tenant to repair and keep in repair, and keep open and use. tho shop for tho business o£ a- butcher. - Tho landlord covonauted to pnint the shop within two years. It appeared that towards tho end 'of 1916 tho District Health Officer gave written notice to tho defoudant requiring certain improvements to bo effected in the* butcher's'shop within Uueo months. Tho defendant replied to this that he considered tho mattor should bo attonded to by the landlord, the. plaintiff. A similar notice to that given to tho defendant wan thereafter •jci-vcd on the plaintiff, and tho parties jnot, but no arrangement was made. On tho oxpirntion of the "three months the ucalth Officer, on April 25, 1917, required tho defendant to ceaso to use tho promises, and notified him that thirty days would bo allowed him in which to find other premises. In order to fully comply with tho requirements of tho Health xfupoi'linent certain structural alterations were alleged, to bo essential, and these tho defendant refused to make, and tho landlord likewise, denied his liability to du so. The defendant proceeded to erect another shop for himself on land of his own. He occupied portions at least of tho building; of whioh tho shop formed part until lie removed altogether to tho new shop. Ho altogether quitted tho wholo of tlie leaeod premises bet'oro the rent duo on March 1 became payublo, and paid all rent up to that date. The defendant contended thut he was not liable for any rent after February. His contentions, in effect, were:—(l) That the. terms of the leaee had become impossible of performance without any neglect or default on his part by reason'of his having been called up under the Military Service Act, 1918. He was, as a facv, drawn in . tho ballot in Juno, 1917, but was not required to enter camp beforo February 6 last. (2) That the landlord had not painted the premises us covenanted. This waa admitted. (3) That it was the plaintiff's duty to comply with the requisition of the Health Officer so far as structural, alterations were necessary, and that by reason of plaintiff's default in bo doing tho defendant was deprived of the use of the shop, and was iu effect evicted from tho premises by tho plaintiff. His Honour said ho was obliged to hold all those points to J>e insufficient for the purpose of discharging the defendant iroin his liability under the covenant to pay-the ront implied, in tho lease by force of the Property Jkiy Act, 190 S. The War Legislation Act, 11)17, did not assist the defendant for that purpose, altliough it pnabled him to apply to a Magistrate ,, for relief, which it was stated that he had not dono earlier in coneequenoe o£ these proceedings, but intended to do so they had terminated. The performance of the covenants contained in tho lease was not rendered impossible by his obligatory soryice undor the Military Service Act. The'performance, would bo sufficient if rendered by an assignee or by his personal representatives in. case ot deatn. Nor could the non-performance by tho plaintiff of his covenant to paint entitle the defendant to quit or to "refuse to pay the rent. Thoro was no condi-, tion in the lease enabling it to be determined for a breach of that covenant, and no such condition could bo implied in such a case. Neither could ,what happened by reason of the action of tlio Jfublic Health Officer relieve tho defendant from liability under, his covenant for the payment of rent.. Tho plaintiff's application for a declaration that the leaso was. binding was, His Honour thought, unnecessary.

Judgment was'given for the plaintiff for the sum of ,£2tl 6s. Bd., with costs on the Magistrate's Court sualo, including the cosU foi , the obaugo oi! venuo from iUaaterton to Wellington £i 2a., and disbursements. Sir. G. G. G. Watson appeared for llio plaintiff and Air. 1 , . J. (J'liegau for the uofendiuit.