IMPORTANT HOTEL CASE

Evening Star, Issue 19792, 16 February 1928, Page 5

IMPORTANT HOTEL CASE

LANDLORDS SEEK FORFEITURE JUDGE DECIDES FOR DEFENDANT INSUFFICIENT NOTICE GIVEN. His Honor Mr Justice Sim this morning heard a claim by Esther Eliza Ellis and Bruce Errington Burns against Donald Hutcheon lor possession of the Victoria Hotel. There was also a counter-claim by defendant, who asked, in the event of the court deciding that the plaintiffs had the right of entry, , for relief from forfeiture. Mr J. S. Sinclair appeared for the plaintiffs, and Mr W. L. Hay (with him Mr J. M. Paterson; for the defendant. 1 Mr Sinclair, in opening his case, said the plaintiffs, who.were the joint owners of the hotel, claimed possession and mesne profits. Under a lease dated October 1, 1925, the plaintiffs leased the premises to Percy George Allen and Ivy Pringle for a term of six years at the annual rental of £1,723 upon the terms and conditions contained in the lease. On September 22, 1920, the lease was transferred to Hutcheon. Mr Sinclair went on to read a clause of the lease which set out that if the license had been endorsed in icspect to a conviction under the Licensing Act or on any other Act it should he lawful for the lessor to enter upon the promises and determine the term of the lease. The transfer of the lease to Hutcheon was agreed to by the plaintiffs. On November 12, 1927, the premises were raided by tho police. 1 The place was watched, and twenty-nine men, apparently customers of the defendant, entered the hotel. They entered at various intervals within two hours by means of a cottage owned or leased by the licensee, and came out when they had apparently got their supply of liquor. Mr Hay said the cottage was part of the hotel premises. The kitchen of the hotel was in the cottage.

Mr Sinclair said that at about II o’clock the police decided it was time to take action, and they caught two men coming out with bottles on them. Two others were found in the kitchen, and the defendant was in the bar apparently filling two mugs of beer for the men. it was contended that the two men were guests, but one of them was found to nave bottles of beer on him. If he were a. guest he was being exceedingly well treated by his host. Previous to this, defendant had been prosecuted on September -5, and convicted on two charges. On November 12 ho was charged with keeping his premises open at a time when they were required to be closed, and at the same time with selling liquor. He was convicted on both charges, fined £lO, and the conviction was ordered to be recorded on the license. That being so, defendant came within the terms of the danse of the lease he had quoted. Assuming that the plaintiffs had complied with the legal procedure required of them up to the time they re-entered the place, it was submitted that they were entitled to forftiture. Learned counsel went on to deal with negotiations between, the of the parties, and said defendant was informed tihat the plaintiffs intended to re-enter, thereby determining the tenancy. The notice given to defendant did not ask for damages, the reason being that the breach was incapable of redress, it would ho impossible to assess damages for such a breach. Under the licensing law the people had the right every three years of dictating the right of hotelkeepers to have their licenses.

The statement of defence, continued Mr Sinclair, denied a number of allegations. In fairness to his friend he might mention that under the Licensing Act, although there was an endorsement on the license, the license was a personal one—the endorsement was not x-ecordcd against the house. Mr Hay. “In other words, yon wipe out he endorsement if wo transfer.” Mr Sinclair replied that there was a specific breach of the condition of the lease. Then there was the fact that the conviction and the publication of such disgraceful proceedings must bring the premises into disrepute. Further, it might be that it would have a serious effec f on the licensing poll. It was claimed that the conduct of the defendant was so bad that he was debarred from relief, even if discretion were given to the court. It was claimed that the defendant could produce no evidence {whatever in justification of liis conduct. Evidence could be produced to show that such conduct by the defendant was not isolated to one occasion. His Honor asked if Mr Sinclair proposed to meet by anticipation the application made by the defendant for relief. It would be better if ho endeavored to establish his case for possession, and, after the defendant had made his application for _ relief, to answer it. The counter-claim could be heard after the claim had been dealt with. Mr Sinclair called evidence. Bruce Errington Burns said he had an equal share with Mrs Ellis in the ownership of the hotel. He was in Australia when ho heard of .the breach of the lease, and hq gave instructions that it was to be immediately determined. Mr Hay said that the defendant had a large amount at stake. He proposed to raise the question .whethei

thoro had been a breach of tho covenant. His Honor said that, so far as the facts wore concerned, on the face of it i'; : ciucd that plaintiffs were entitled to recover, unless his notice was bad. Mr Hay said it was admitted that a breach of the Licensing Act was committed. The_ question arose as to whether tho license was properly endorsed. Horace Brent, managing clerk for Messrs Irwin and Irwin, said it was mentioned to the defendant’s solicitor on January 16 that tho plaintiffs insisted on forfeiture. To Mr Hay: It was on December 16 that a resale was made. Mr Hay: “Pretty prompt.” Witness further said that the resale was conditional on tho court granting the f .feiture. John M‘lndoc, clerk of the Magistrate's Court, gave evidence regarding tho conviction of Hutcheon. To Mr Hay: The endorsement was put on the license wherever there was room to put it. It was usual to typo it on the margin of the license. It was his practice to sign the endorsement; lie had not known of cases where the magistrate signed it. Mr Hay said the covenant of tho lease had to be very strictly construed. His Honor said tho covenant provided that the business should be carried on in an orderly manner. Committing the breach of the Act was nob carrying on in an orderly manner. Mr Hay said it was contended thgi “quiet and orderly” in the covenant referred to the conduct of the hotel iu general, and did not have reference to the question of a breach of the Act. Three or four thousand pounds of tho defendant’s money was at stake. His Honor asked if Mr Hay suggested the license was not endorsed. Jh Hay: “1 suggest tho term ‘endorse ’ means exactly what it says.”His Honor: “ What is it?” Mr Hay; “The primary meaning of endorse is to write on the back. Murray’s dictionary gives that as the meaning.” Mr Hay claimed that there was no evidence before the court of any breach except the conviction. Mr Sinclair said ho relied upon the conviction and the endorsement. Mr Hay went on to enlarge on his point that the license was not properly endorsed. His Honor asked if the back of the license was completely covered with writing, how' could it be endorsed on the back. Would Mr Hay say it was then impossible to comply with tho Act ? Mr Hay repeated his contention. His Honor; “Mr llav, Mr Hay, Mr Hay I” Mr Hay went on to say that tlio endorsement should havo been signed by the magistrate, and not by tin clerk of the court, lie also claimed that section 91 of the Property Law Act required that a landlord had tc give reasonable notice to a tenant to consider his position and take steps to avoid Hie penalty of forfeiture by arranging with the landlord or by paying compensation or something of that nature. Hutcheon had offered £4OO to settle the matter, but it had been declined. Learned counsel also contended that the notice to the defendant did not specify tho particular breach complained of. Mr Sinclair submitted that his e.ients had observed all the formalities required by law. Tho circumstances, ho claimed, warranted the shortest of notices. It was a fact that defendant had decided to resist the- forfeiture before, the notice was given. His Honor decided that plaintiffs must fail in their action because they did not give notice as required under section 94 of the Property Law Act. Ho said it seemed to him that tho time allowed, only three days, was not sufficient, and did not give the defendant sufficient time to consider ins position. Practically only two days' notice was given, because the notice was served on a Thursday, that giving defendant practically only Friday and Saturday morning. The notice waa (piite unsuitable, and on that ground, without considering any other grounds, plaintiffs must fail. Plaintiffs would, therefore, be nonsuited. Mi Hay applied for costs. Jlis Honor granted defendant costa according to scale as on a claim lor £I,OUO plaintiffs having been nonsuited, is was not necessary to consider the counter-claim. ,