WAS SEIZURE LEGAL?

Sun (Auckland), Volume IV, Issue 1062, 28 August 1930, Page 9

WAS SEIZURE LEGAL?

LANDLORD’S CLAIM FOR TREBLE DAMAGES INTERESTING CIVIL SUIT The defence of the Commercial Loan and Finance Company, Limited, to the claim by Arthur Cleave for treble damages for allegedly breaking a pound on goods distrained upon, was heard by Mr. Justice Herdman in the Supreme Court yesterday afternoon. Ilis Honour reserved his decision. Cleave claimed that he had distrained for arrears of rent on fittings of Turkish baths that he had leased to an Indian, in Chancery Chambers. He alleged that the defendant firm wrongfully took possession of the goods under a bill of sale, and refused to deliver them up. Tie claimed that the goods seized were valued at £lls, and claimed treble this sum as damages for alleged Pound-breach under a statute of 1689.

The defence relied upon the contention that the goods were legally seized because the bailiff had not been present at the time, it being submitted that, as between landlord and a third party, the bailiff required to remain in occupation of the premises on which he seized goods. For the defence, Mr. Goldstine applied for a non-suit on the ground that if distress was made it was illegal or irregular. The irregularity relied upon was that no warrant was delivered to the tenant, as required by the Act, and that no inventory had been made forthwith as the provisions of the statute stipulated. In any case, he submitted that plaintiff’s value of the goods taken was excessive. The chattels removed did not exceed £SO, and, in fact, realised only £42 gross when sold at auction.

He explained that when Naik entered into the Turkish bath business, he obtained a loan of £lls from the defendant firm on a bill of sale over (he fittings. By February last, the interest and principal owing to the defendant firm was £142. The morning after the meeting of Naik’s creditors, the manager of the defendant firm, the bailiff and others went to seize the goods, and entered the basement, the door of which was wide open.

About two loads of goods had been removed and dumped upon a nearby section, before the tenant, who was on the premises, appeared. Naik, however, did not mention that Cleave had distrained the previous evening, and there was no evidence of any such action having been taken. STOPPED BY CARETAKER

The tenant then started to remove some of his goods, but was stopped by the caretaker from taking away some of the furniture. Then the plaintiff’s bailiff appeared on the scene, but he did not mention that Cleave had seized the goods the previous evening. Nothing was heard of the earlier distraint until Cleave arrived and produced the warrant from his own pocket. At Cleave’s suggestion, plaintiff’s bailiff asserted he had been on the premises all night. Evidence of the debt owing under the bill of sale, and the seizure of the goods was given by E. R. Sly, manager of the defendant firm, who stated that there was no indication that Cleave had already distrained when he took possession of the chattels. Corroborative evidence was given ;by F. Nicholson, a plumber, D. A. Brown, who acted as bailiff for the defendant firm. J. H. Ansell, ! auctioneer, valued the goods taken from the premises at. £45.