COURT NEWS

Hokitika Guardian, 17 March 1932, Page 2

COURT NEWS

A CLAIM DISMISSED

GREYMOUTH, March 17

At the Magistrate’s Court yesterday before Mr W. M.eldrum, S'.M., Patrick McCormick, farmer, of Moana, acting as executor and trustee in the estate ! of Margaret Phelan (deceased), and the, defendant was Ramies Steel, senr., retired. Greymouth. Mr W. P. McCarthy represented plaintiff, and Mr ; J. A. Murdoch, of Hokitika, appeared for defendanet. Plaintiff claimed £lB2, for “the defendant’s use and occupation of 'Section 33b, Block 1, Greymouth Native Reserve, of which land plaintiff is the registered owner, from March 1, 1924, to . March 1, 1931.” Plaintiff set out that no rent was fixed for the use by the defendant of the land, but that the use thereof was reasonably worth 10s per week, making a total of £lB2 for the period mentioned, Mr McCarthy said that, in March, 1924, defendant purchased .from the Phelan estate the Golden Eagle Hotel, Boundary Street. Adjacent to the hotel was a small section, which was not.sold with the hotel, and was distinctly separate. Defendant remained in the hotel until March 31, 1931, and during the whole of that time he used the small section. No actual agreement for lease was drawn up, but on several occasions Steel was approached in regard to the payment of rent for the section. On July 19, 1926, the executor of the estate instructed Messrs Hannan and Seddon to come to definite arrangements with defendant. In conformity with those instructions, Mr T. P. Ryan,, the firm’s.managing clerk, told defendant, that, unless he, quitted the section before the end of the week, lie would have to pay 10s per week rent! That sum was fixed to cover the outgoings on the section, the rates and ground rent amounting to £2O 7s per annum. Steel continued to use the section. He was asked several times, by Ryan, to pay the rent. Both parties were clients of Messrs Hannan »nd Seddon, and there was a natural re- * luctance to take steps. On November 7, 1929, the matter was again discussed, and, two days later, defendant offered to pay £6 per annum, which was refused by ji Ryan. The', latter noted the various interviews with Steel in his diary. The question now was, what was a reasonable; sum for the use of the section? It was maintained that defendant was liable, and that 10s per week was reasonable. For the defence, Mr Murdoch said it must be apparent, on the pleadings, that the claim was rather remarkableSteel first of all entered the promises as licensee in 1924, having purchased the hotel for £4500. Admittedly, he did not purchase the adjoining small ,section, on which tumbledown shed, and a , large amount of lumber, which liad to be cleared aWay. Negotiations were pending at one time for the purchase of the section, but the purchase was never cowipisted. Steel would swear that the relationship of landlord and tenant never arose, either by expressed or by implication. If the S.M. were satisfied on that point, there could be no claim for use and occupation. Such a claim must he founded upon the relationship of landlord and tenant. In the statement of claim, plaintiff himself , said that no rent wa( fixed. The section was in an insanitary and deplorable condition, and the goods which were ' there when Steel went into the hotel were there still. ' Steel assumed, considering the sum he ! paid for the hotel, that he was entitled to use the section. If called as a witness, Mr Hannan would not contradict 'Steel if the latter swore that he was given permission to use the section.

Giving judgment, the S.M.. said that the> case was most unusual. There never appeared to have been any clear agreement between the parties as to the definite payment of rent for the use of the section. Even Ryan’s evidence was to the effect that, although he claimed 10s per week, Steel would never agree to pay that, and the most he would offer was £6 per annum, which Ryan would not accept. Steel’s evidence was that, when he purchased the hotel, he mentioned the matter of the idle section to Mr Hannan, who was putting the transaction through, and Steel said that Mr Hannan said that, until the section was needed for the use of the plaintiff, or. until it was ■sold, there was no objection to him using it; that no rent was fixed, nor was 'Steel thinking of paying rent for it. It was absurd for plaintiff to expect to get the full rent"! value of the section being held for a rise in prices, from a man who made temporary use of it, without title value. Further, the fact that so much time had snemed to be against the plaintiff. A claim for rent for use and occupation must be founded on no agreement, expressed or implied. There was no time, un to March 3 1, 1931, at which the minds of the parties met as to tlm ' amount of rent to be paid. Plaintiff | was losing nothing through defendant’s j use of the section for drying clothes. : He was not prevented from selling it or leasing it. and defendant was only using it until it was needed; he did not want a long lease of it. Tn the absence of a.ny definite agreement as ’ to rent, plaintiff was not entitled to succeed.

On the application of Mr Murdoch, judgment was entered for defendant with costs as on a claim for £18?. Court costs amounted to 2s, and solicitor’® fee to £9 2s.