APPLICATION FOR POSSESSION

Pukekohe & Waiuku Times, Volume 9, Issue 512, 9 March 1920, Page 2

APPLICATION FOR POSSESSION

AN INTERESTING ACTION. JOHNS V. McARTHUR. An interesting tenement case came before Mr. F. K. Hunt, S.M., at the Magistrate's Court on Thursday last, when John Walter Johns, retired farmer, claimed possession of a dwelling house and premises situated in West Street, Pukekohe, occupied by J. F. McArthur as tenant, at a weekly rental of one pound ore shilling, which tenancy had been duly determined by a legal notice to quit, served upon the defendant, upon the grounds that the premises were reasonably required by the plaintiff for his own occupation; (2) the sum of j-2 2s for rent, or in the alternativ for use and occupation of the premises from February 5, 1920, to February 19, 1920, at the cost of £1 Is per week. Plaintiff also claimed from the defendant rent at £1 Is per week from February 19, 1920, to the date of judgment. Mr. J. G. Haddow appeared for plaintiff, and Mr. Percy H. Basley for defendant.

Mr. Haddow said the case was a simple one of possession. Mr. McArthur was the weekly tenant of plaintiff, and when a month's notice to quit had expired he did not go out. Mr. Basley contended that the notice to quit was not a notice. It was void. It gave four weeks' notice from January 2, whereas a month's notice should have been given under the regulations. Mr. Haddow said he had been instructed that a month's notice had been given. Lengthy legal argument ensued with reference to the notice. Eventually evidence was given by Mrs. Catherine McKernon, of Otahuhu, who said she was the former owner of the house. She sold the property in December, and the transaction liad been completed. When she let the house to Mr. Mc Arthur he took it as a weekly tenant at £1 per week. After McArthurs went in Mrs. Mc Arthur wrote to witness and asked her if she would lease it for two years, ' and witness replied, "Yes." There was no written agreement, but a verbal arrangement. That expired in June last. Sometimes Mrs McArthur sent four weeks, eight weeks and 12 weeks' rent at a time. She never had any discussion with Mr. McArthur over the matter. She had only met him once. There was no arrangement for any further period, but Mrs. McArthur wrote and asked witness if they could put in some potatoes. Witness gave her permission to put the potatoes in. To Mr. Basley: McArthur to pay sanitary and water rates. Ihe electric light was installed, and the rent raised to tl Is per week. The work was done about this time 12 months ago. Regarding the notice to quit, Mr. Basley contended that one calendar month's notice should have been given. Mr. Haddow's copy of the notice stated that it was one month's notice, whereas it was a four weeks notice. Mr. Basley quoted a similar case, and submitted that they were entitled to one month's notice, and not four weeks' notice, as given. Mr. Haddow contended the notice was legal because McArthur had a weekly tenancy, and that was how the rent was arrived at. Also, it was a weekly tenancv because there was no indication of any other period. There was~ a clear indication ,of a weekly tenancy. This rent was recoverable week hv week, and, therefore, he submitted, it was a weekly tenancy. Mr. Basley contended that it was a tenancy at will and quoted law reports on the matter, and submitted on the evidence in them, and the evidence given in the present case, it was a monthly tenancy, and a notice of one calendar month to quit was required. The very fact of defendant having paid the rates did not comply with the contention that it was a weekly tenancy. His Worship said he was satisfied that the tenancy was a monthly one, but was sorry that Mr. Haddow was present under wrong instructions. He would reserve his decision on the point until he had heard legal argument in the matter.' i John Walter Johns, farmer, Pukekohe, said he was living with his sister. He had a family of six children, distributed in three different homes. The furniture was stowed in four different places. He saw Mr. McArthur on January 6, and he said. "I suppose you know I bought the house." McArthur replied, "Yes.." Witness said the position is this, "You are living for five or six weeks on your farm. Could you let me have the house some time in January? and he was prepared to pay rent from January I.' Mc Arthur said the month's notice would be up on February 3. This was the first he knew of the notice. He told Mrs. McKernon to give them reasonable notice. He told Mr. McArthur he could have a couple of rooms to" store his furniture, as well as the use of the sheds. If he could not do that, witness asked if he could let him have a couple of rooms to store his furniture. McArthur said he would consult Mrs. McArthur, so on the following Tuesday he saw Mr. McArthur, and the latter told him his Wife had met with an accident, and he did not consult her. Witness never heard anything further relative to the storage of furniture. There was a house to lease at Buckland, and he drew Mr. McArthur's attention to it, and when enquiries were made it was found it was too late, the place having been sold. To Mr. Basley: Mr. McAi ihu told him the notice expired on February 3, whereas four weeks fronr January 2 made the notice expire on January 30. He told McArthur that if he could spare a couple of rooms he (witness) could manage for two or three weeks. Only witness and defendant were present on the occasion. The conversation took place in the engineer's olfice of the Franklin County Council.

To His Worship: McArthur made the bald statement that the notice expired on February 3. Towards the end of January he saw Mrs McArthur at the house and she said they were point; to pack up. They could not get a house. Her wrist was bad, and she could not do much packing, but witness said he would give assistance to pack up. On a later occasion he saw Mrs. McArthur and told her that the whole matter was in a solicitor's hands. She told him that they had the matter in a solicitor's hands also. On a Friday he received a ling that he could have two rooms. Witness produced transfer of title dated February 13, 1920. James F. McArthur said he received the notice to quit on January 30. Johns called about January 12, and told him he had purchased the place, and spoke generally about the matter. He heard John's evidence. He told Johns that he had received the notice from Mrs. McKernon, but never led Mr. Johns to believe that he would be out by February 3. He received a letter on February 10 from Johns' solicitors stating the completion of the sale rested on McArthur quitting. '■ To His Worship: He nan not been able to get another house. To Mr Haddow: According to Mrs McKernon's letter, he was to get out of the house, but he never told Mr.

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