DISPUTED TENANCY

New Zealand Times, Volume XLIV, Issue 10295, 2 June 1919, Page 6

DISPUTED TENANCY

A LEASE IN QUESTION

INTERESTING CIVIL ACTION

DECIDED

Judgment in an interesting civil action concerning possession of certain premises in Lambton quay was given in the Supreme Court on Saturday by His Honour Air Justice Edwards,

The plaintiff was Kathleen Liddle and the defendant Alary Rolleston, and in her statement of claim the former set out that on February 23rd. 1917. sho agreed to purchase the property known as 256, Lambton quay. On April 3rd of that year she became duly registered as the owner. It was made known to the plaintiff by the vendors. Alessrs Skerrett and Wylie, that certain tenancies were subsisting with regard to the building, and that she was expressly informed that the defendant had an arrangement for a lease of certain portions thereof for tho term of ton years and five days from January 27th, 1917. at the rent and subject to the conditions set out in a draft lease submitted to the defendant by the vendors on January 27th, 1917, and subject to a proviso determining the lease at twelve months’, notice.

Tho plaintiff claimed: (1) A declaration that the defendant’s tenancy is subject to determination; (2) that it has been duly determined; (3) possession of the demised premises; (1) as rent or mesne profits the additional sum of £2 per week from Afarch Ist, 1918, to tbo date of judgment; (5) costs and general relief. Tho defendant, in her statement ot defence, denied allegations contained in paragraphs 1 and 2 of the statement of claim, and alleged that the land was purchased by and in the name of Robert Hannah on or about February 23rd, 1917. The defendant further alleged that prior to the purchase by Hannah Messrs, Skerrett and Wylie had contracted with her for a lease of the first floor of the building for a terra of ten years at the yearly rent of £312. Hannah was expressly informed that a lease was being arranged with the defendant for tho first floor of the building, with a show case, for ten years at £6 per week, and upon the making of the contract for sale the statement of the tenancies was confirmed. Defendant contended •that the proviso in the lease was inserted without her authority or knowledge, and that her attention was not drawn to it when the draft lease was sent to her, and that relying upon the confidence which she placed in Air Wylie, she did not read through the draft when she received it. Defendant now repudiated the proviso, and said that no such notice could be lawfully given, and that the tenancy had not been determined. Defendant denied that plaintiff had any right to increase the rent, and counter-claimed for a declaration that she was entitled to a lease as claimed by her. After exhaustively dealing with tho evidence and legal argument, .His Honour said that counsel for the plaintiff had admitted that the construction ot the clause in question might result in great'inconvenience to the defendant, but they said the meaning of the words used was as contended. Even if this was so, said His Honour, it could not avail the plaintiff anything. Upon a review of the whole case he came to the conclusion that not merely had the plaintiff failed to discharge the onus which lay upon her of proving that the terms upon which Mr Wylie and the defendant agreed for a renewed lease to the defendant for ten years included a condition that Messrs Skerrett and Wylie should bo at liberty to determine the lease by a year’s notice in the event of a sale by them of the building, but the defendant had established affirmatively that no such condition was included in the,terms in question. His Honour felt it incumbent upon himself to say that it was much to be regretted that Air Wylie conducted his transaction with tbo defendant in such a manner as to render this unfortunate litigation possible. It Mr Wylie had insisted that the defendant should be represented by an independent solicitor, it appeared to His Honour to be very unlikely that she would have entered into such a contract as was alleged by him. His Honour held that the defendant was entitled to judgment both in the original action and in the counterclaim, with costs according to scale. In the counter-claim there would be judgment for the declaration . asked for by defendant, and for specific performance of the contract so declared.

At tho hearing Sir John Findlay, with him Mr A. W. Blair, appeared for the plaintiff, and Air A. Gray, K.C., with him Mr M. Alyers, for the defendant.