ACTION FOR DAMAGES.
AN OMATA FARM CASE. ALLEGED BREACHES OF LEASE. Alleged breaches of the provisions of a lease and failure to give up possession of his farm at Omata formed the basis of a claim brought by John Penwarden Fitzroy, against Charles Alfred Percy Wood and Percy Arnold Badland, at the Supreme Court at New Plymouth yesterday before His Honor Mr. Justice Chapman. The plaintiff’s statement of claim set out that he leased his property at Omata to Wood with an optional purchasing clause, which was not exercised by the time the lease was up on January 17, 1922, and that some months prior to that date the defendant Badland had entered into possession of the property and was still in possession, although the plaintiff had not consented to any assignment or under-lease. He also set out that the defendant Wood had committed breaches of the lease in that he had failed to keep down blackberry and furze, had failed to keep tne place in repair, and had not filled the land according to the terms of the lease. The plaintiff therefore claimed for possession of the land and premises, £824 Is as damages, and £2OO by way of mesne profits from January 17, 1922, to date. As an alternative he claimed for possession of the land and premises, the sum of £624 ]s for breaches of th p lease, £lOO for withholding possesion, £lOO as general damages, and £2OO as mesne profits. PLAINTIFF’S CASE.
The plaintiff said that, when he purchased the property some six months prior to leasing it to Wood, the fencee and other appurtenances were in good order. About. 65 acres of the farm on the north side of the Tapuae river was clear of blackberry. There was some growing on the 40 acres on the south side of the river, but on the whole he considered he had made a good bargain. He had visited the place several times since Wood had taken possession, and had found that he had not cut the blackberry, according to the terms of the lease. He was supposed to cut in January, which was the best time to stop the blackberry from spreading. Defendant’s neglect to carry out this clause of the lease had practically ruined the farm. He had heard that Wood had obtained some laborers from the breakwater to cut the blackberry, but they had simply cut the tops, and had done more harm than good. On one occasion when he had gone out to the farm he had found the defendant Badland in possession, and witness said he had told him that he was there on sufferance. Some months after he received a request to allow the lease to he transferred to Badland, but. he declined io give his consent. As far as he knew the rent was paid by Wood. He received if through his solicitors. The lease terminated on January 17 of this year, and he had received no rent, since that date, neither had he been given possession. At the present time the
fences were down, and there were beaten tracks where the neighbor’s cattle had passed to and fro on to the property. The terms of the lease re-' garding tilling had also not been complied with, while an acre of tawa bush, of which he had thought a great deal, was now gone, only the stumps being left.
To Mr. Quilliam: He had intended to go on the farm in January of thia rear could he have obtained possession. 1? rom the middle of 1918 until January. 1919. when Wood camp on to the farm, the blackberries would have had a free run. He had instructed his solicitors last year to take action about the blackberry and the fences, but they had not done so. Thp examination was continued with reference to previous actions and settlements between the parties over, the property, and witness was positive that at no time had he ever considered giving Badland a now lease, nor hhdhe taken any proceedings against him* or Wood with regard to his presence on the place. He had never received, to his knowledge, a single penny from Badland. .
George Elliott, traveller, Levin, said he had sold the property to Penwarden, and that if was then in Rood order. He had seen the plane sinee, and he cave details as to how he thought it had gone hack, his remarks coinciding generally with those of the plaintiff. PREVIOUS ACTIONS. Clande Horace Weston, solicitor. New Plymouth, said he had acted for Penwarden in a suit against Wood, while his partner. Mr. Billing, had acted for Wood in various matters. He rwitness) had drawn np the lease concerned in the present action, and had acted for Penwarden in two actions against Wood and Badland on matters arising out of the lease, more particularly, he thought, concerning alleged breaches of the lease regarding the cutting of Hackberries and to recover possession and damages. Badland was joined as a defendant. as he was then in possession. The first action was discontinued be-
cause of the shortness of notice given, the second action being taken on July 6. 1920, for similar judgments. The bearing of this suit was adiourned from the September session to lhe December session, wfien a motion to have one, Metcalfe, joined as a third party was dismissed. On February 15. the action was settled, hut the settlement left open the complaint concerning fences and the blackberry. He could not re-
collect anv mention of a new lease from Ponwa.rdon to Badland after the settlement was arrived at. and he could not sav if anv steps had been taken to obtain Ponxyardpn’s rent, ! which was then outstanding, from Bad- [ land. 1 In reply to Mr. Quilliam. witness I stated that one of the main causes oi delay in getting the lease signed in the first, place was the blackberry covenants. During the negotiations for the settlement of the action referred to, he wa-s in touch with the solicitors of Badland. Metcalfe, and 'Wood. Prior to that n new lease had been drawn up for Badland, but the negotiations broke down, his recollection being that Badland’s side had been responsible for the. stoppage. Tn the various claims for rent- due. he believed that, Wood had ; obtained the last payment from BadI land as assignee. When the settlement I was arrived at, Penwarden was agreeable to the lease being assigned to Badland. 'HISTORY OF NEGOTIATIONS. Cyril Henry Croker, solicitor. New I Plymouth, was also called to give par‘tiGulurs concerning the prior actions in
which the present parties were concerned. The original action was discontinued, and during negotiations, conducted without prejudice, prior to the second action coming on in the court, he was advised that a fresh lease was being prepared from Penwarden to Badland, and that he and his client, Wood, would not have any further interest in the case. He was subsequently informed that the negotiations for the new lease had broken down, and that the action was to be' proceeded with. He then received a letter from Penwarden's solicitors, advising that the fresh lease was not being proceeded with, and enclosing a statement of charges which, if paid, would result in the case being struck out. He corroborated Mr. Weston's evidence regarding the bringing in of Metcalfe as a third party. Tn February he was notified that the action was being brought on in court, and he communicated with Mr. George Grey, Badland s solicitor, and with him proceeded to Badland’s farm to try to arrange a settlement. The case was settled on
February 15, 1921. The terms of the settlement were that, subject to certain rents and arrears being paid, the blackberry being cut and the fences put in order. Penwarden was to consent to an assignment of the lease to Badland. Evidence concerning the extent to which the blackberry had spread during the past three years was given by Richard Albert Large, land agent, New Plymouth. He said that when he inspected the farm recently the fences were down in places, while in others the posts werp swinging. So far as he could see nothing had been done to keep the fences in repair since Penwarden had leased the farm. Corroborative evidence regarding the past and present condition of the farm was given by William George Richardson. farmer, New Plymouth, and by Joseph Brown, retired farmer, New Plymouth. The latter stated that the place in proper condition should carry 25 cows, but at the present time he would not carp to more than 16 to 18 cows on it. This concluded the ease for the plaintiff, and the court then adjourned till 9.30 this morning.
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Taranaki Daily News, 14 December 1922, Page 8
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1,454ACTION FOR DAMAGES. Taranaki Daily News, 14 December 1922, Page 8
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