SUPREME COURT

Dominion, 14 March 1919, Page 3

SUPREME COURT

PROVISO IN A LEASE

INTERESTING TENANCY CASE

'the hearing of the ease of Kathleen LitlJle v. Mary lfolleston was. continued in the Supremo Court yesterday before Ilis Honour .Mr. Jusiico Edwards. hir John Findlay, K.C., with him Mr. A- \Y. Blair, appeared for tho plaintifr, aim .Mi. A. Gray, K.C., with him Mr. M. Myers, for the defendant. Tlw ease had reference to tho dctendant's tenancy of tho first floor ot the building known ns -'50 Lambton Quay. The defendant was a tenant of the. owners of the building, Messrs. Skerrett and Wylie, and was in occupation of about thren-quarter.s of tho first door, and early in ,Tai nary, 1917, arranged with Mr. Wvlie for tho nso of tho first floor. At the time of this arrangement the defendant's lease had about four years to run. A new»leaso was arranged for ten venrs and five days of tho whole of the hrst floor at a rental of .£312 a year, and certain alterations wore agreed to be made. Shortly after the leaso was arranged the property was sold to Mr. Rouert ITannaii or to the plaintiff. The lease signed by tho defendant contained a proviso tint in the event of the sale of the proporcy tho tenancy might be determined on one year's notice. Acting oh the terms of this proviso, the new owner gavo the required notice to determine the tenancy, and sought, from the Court a declaration that the defendant's tenancy had been duly determined, and that defendant pay to the plaintiff as rent or mesne profits the additional sum of i£2 per week as from March 1. 191 S. 'l'he defendant denied that her tenancy was subiect to determination as alleged, and claimed that she was entitled to a tenancy of ten years without any right Of determination by notice, and coun-ter-claimed for a declaration that she was entitled to a lease for ten years from January 27,1917, at .03 per week, 6ubjoct to the terms and conditions in defendant's prior leases. Evidence was given by William Turnbull. architect, who said lie designed the 'building, nnd was at one time a tenant there. Ho had a communication from Mrs. Kolleston in the early part of January, 1917, with respect to certain alterations. lie saw the defendant, also Mr. Wylis, who said ho had no objection to the alterations being made, provided thare were no structural alterations. Subsequently he carried out certain works for both Mr. Wylie and Mrs. Rollesfcon. He was told by Mr. Wylie that Mrs. Rolleston wanted increased accommodation. and .that the alterations wero in respect to a new lease granted to Mrs. Rolleston.

The defondant, Mary Rolleston, said sho first became ;i tenant in the building in 1911, and had had two leases prior to the lease of 1917. On January 11, 1917, she interviewed 11 r. Wvlie with respect to increased accommodation. Mr. Wylie suggested that a fresh lease should be made out for the whole of first floor for, a period of seven years, but defendant stipulated for ten years, which was ultimately conceded. Mr. Wylie said that, a long lease would be detrimental to the sale of the property, and remarked that at the end of ten years defendant herself might be able to purchase the property. The proviso in the lease had never been explained to her, nor did Mr. Wvlie at any time mention the matter to her. When negotiating for tho leise in January, 1017, she asked Mr. Wvlie if there would be any chance of a renewal at the end of ten years, and he replied that she had done very well, and that the property might be sold by then. She received tho lease on January 27. 1917, while she was very busy, and she just glanced through a page or two to see if the term and the rental were correctly stated. She did , not know anything about the proviso until she deceived a notice from Mr. Hannah. She then looked up the lease, and read it through cnreiully, when sho discovered for tlio first time tho existence of the proviso. Shf. had not rend through the lease because she had regarded Mr. Wvlie as her solicitor, and had absolute confidence in him. To Sir John Findlay: She knew the property was for sale. Sho did say to M.\ Wvlio that 6he did not think the property would be sold. She would not have accented a lease terminable at twelve months' notico'under any circumstances whatever. x After hearing the addresses of counsel. His Honour reserved his decision.