SUPREME COURT

Dominion, Volume 13, Issue 232, 25 June 1920, Page 3

SUPREME COURT

A DISPUTE ABOUT TENANCY /" CLAIM FOR £501 DAMAGES A dispute about the tenancy of business premises at the corner of Lambton Quay and Woodward Street formed the subject of an action-heard yesterday by the Chief Justice (Sir Robert Stout). The parties were John Henry Hooper, land agent, and Herbert Poarsoii Hanson,' dentist.. Hooper's principal claim against Rawson was for £501 damages for alleged forciblo entry and trespass. Plaintiff asked the Court to dcclare him the rightful tenant of the ground floor of the building ' in question. Mr. G. Hutchison appeared for plaintiff, and Air. A, W, Blair for defendant. Plaintiff alleged that by an agreemont made on July 24, 1917, John Weir, of Lpwcr Hutt. obtained from defendant a lease of the ground floor of No. 118 Lambton Quay. According to tho terms of the agreement,- defendant was to' let, and Weir to lease tho premises for six months at a woekly rental of- £5, with right of renewal for a further si* months at the same rental, if defendant had not sold tho property or did not want to rebuild. The 'agreement also provided that if. defendant had not sold or wanted to rebuild during the second period of Bix months tho tenancy should continue on the same rent until defendant Bhould sell or want to rebuild. The last-men-tioned provision did not appear in tho written agreement, but plaiinlf contended that it was none the less part of the agreement. The payment, of rent was to begin about- the end of September.' On October 2, 1917, plaintiff and Weir entered into partnership, and one of the terms of tho nartnershin agreement was that the lease Bhould become an asset of tho Arm. On the same date Weir sub-let the' premises to Bruce Howe, reserving ono part ns an office, in which the partnership ("J. H. Hooper and Co.") was to carry on business. The partnership was dissolved on January 7, 1918. and Weir's interest in the lease waß assigned to plaintill. The. lease subsisted un to the present time. On February 28, 1919, plaintill fjund that hie office had been broken into, that the wooden partition erected by the partnershin was being torn down, and that- the interior fittings were being interfered with. Later in the day ho found a workman demolishing the woodwork of tho office. "Bruce Howe was present,' and he informed plaintiff that defendant; had forced an entry into tho office and.given him possession. Howe had since occupied the premises. Plaintiff had been deprived of their use, and had also been deprived of material employed in the erection of the partition, and in tho construc: tion of a wooden counter and desk. He had further been deprived of the use of his account books, business papers. and office furniehlngs. which were still detained by defendant. Plaintiff claimed tho following damages: £17, aa the value of the partition, offlcc-counter and desk; £'JI for detention of eccoupt books and furr nishings; £501 for forcible entry and trespass.

In his statement of defcnce Rawson contended that there was no .arrangement about the tenancy other than that set forth in the written agreement. He'received no notice of tho assignment of tho, lease, and believed until tho exniry of the' tenanov that \Veir was the' tenant. He gave possession of the premises to Ifowe on February 28, 1919. Plaintiff could not havo ben in rightful poeseßsiori at that time. The great 'bulk of the material used In constructing the partition between the office and Howe's shop belonged to Howe,, and had been lent- hv him to.Weir. No property of tho plaintiff had been detained. Plaintiff had nlways been, and still was. at liberty to take away any articles belonging to him. When tho evidence for the plaintiff. I'?'' been heard, Mr. Hutchison informed the Court that his client couM hot BUBtain Mb case for subsistence of the teni>»cy hayond the second period of six months 'The point left for determination was whether tho plaintiff was entitled to any damageß by res son of the fact that tho entry was forcible. His Honour observed that when tho entry was mn de the tenancy had already expired, and the tenant's right to remove fl-.turos was limited to a right to remove them during the term of. the tenancy. This would apply only if the fixture was the tenant's, but it wns alleged that the partition belonged to the premiies, and wri not removable in any. event-. The evidence called for defendant was to tho effect that no force wn,B used in entering the offic: th<i.t- plaintiff's accountbooks and furnishings were carefully placed upstairs, whence plaintiff was at liberty to romovo them at any time; and that, plaintiff had been offered the. return of-bin property, but had declined to accent it..'; nis Honour said that although he' "hart, no doubt about the matter."he would prepare a written Judgment, as the ease had to do with fixtures. A MORTGAGED T/IFE INSURANCE ■ POLICY. . His Honour next hoard the case of Honora Barry, of Auckland, against'the Australian Mutual Provident Society and tho executors of the will of the late Charles Edward Hanson. ! Mr. Hutchison appeared for tho plaintiff. and Mr. Blair .for tho defendant society.

There was no dispute regarding the fact". Which were as follow: Deceased insured his life with, the A.M.P. Society for ill'O. He subsequently mortgaged the policy to the society to securo an advance of £23: and he also "ave a Becond, mortgage to plaintiH to secure an advance of £40. For a considerable period there was no payment of premiums, but the policy was kept alive by means of the surrender value, and did not lapse until December 31. 1916. A few days after the expiration of the days of grace, within which another premium could have been paid to prevent the policy from lapsing, a brother of Hanson offered to Day ono overdue premium. The rules of the society provide that a lapsed policy can be revived at any time within thirteen months of the lapsing date on payment of overdue premiums and the production of a certificate of health by the insured. The insured in this case was an inmate of a mental hospital at the time at which payment of the premium was offered, and his condition, was such that it was impossible for a certificate of health to be produced. Accordingly, therefore, the so-, cioty did not revive tho lapsed policy. The insured died ten months after the policy had lapsed. Plaintiff claimed that, tie socioty could not "lopße the policy." ond that the provisions of the Moratorium Act had tie effect of preventing a, lapse. After hearing argument, the Court reserved decision. •