Important Judgment.

Thames Star, Volume X, Issue 3143, 15 March 1879, Page 2

Important Judgment.

The following ii the judgment given by Major Keddell, 8.M., yesterday in the case Fleming v. Ehrenfried:—The facts of the case in brief are these: Mr Ehrenfried was rated for certain property in Brown street, which he asserts he is neither owner nor occupier of, nor' was at the time of the valuation. When the rate came due Mr Ehrenfried deqlined to pay it, and acting, no doubt, under legal advice, defended the action when sued by the Borough for the recovery of the rate. The judgment was as follows—This case is" a suit for the recovery of £2 sa, alleged to be due by the defendant to the "plaintiffs, being the amount stated in the Borough rate-book as the rate due by the defendant as "occupier" and "owner" of certain rateable property—viz., allotment and three shops in Brown street, Grahamstown,... within the said Borough. The plaintiffs rely on the indefeasibility of the raterbook and Valuation. Eoll, and urge that the defendant has no grounds for resisting the payment of a rate etruck on the value of the rateable property as appearing on the Valuation 8011, save and except on the grounds mentioned in the sub-sections of Section 42 of " The Bating Act, 1876." Evidence is given 6f the proclamation of the Borough, and it is admitted that all necessary formalities have been complied with. The Valuation 801 l and rate-book being produced in evidence, shew that the rate struck (£2 ss) is on the value of the property in question (£45), being at the rate of Is in the £. The defendants name appears in the first and second column of the Valuation 801 las " occupier " and " owner " of the said allotment and three shops. —The valuer who prepared the Valuation List deposes that be prepared it during December, 1877, and January, 1878, and transmitted it to the Borough during the latter month. The list was signed by the Judge of the Assessment Court for the Borough as provided, and became the Valuation 8011, from which, as was required, the rate-book was made.—For the defence it is supposed to prove the contrary of the contents of the Valuation 801 l and rate-book, and it is urged that by the 31st and 44th section of the said Act, it is competent for the defendant to do so, notwithstanding the suggested limitations of the 42nd section.—The defendant deposes that in the month of December, 1877, and January, 1878, and since that time, he was not the occupier or owner of the allotment and three shops in question. Mr Dean, for the Borough, does not dispute this statement, but objects to the evidence, and argues that it is only on such grounds as are found in the 4th subsection of section 42 that the defendant could appeal against the rate* book. It appears to me that by clause 31 it is competent for some person to test the correctness of the Valuation 8011, otherwise the provise—". unless the contrary is proved "—is mere surplusage ; and it seems that it could only be.in cases like the present where local bodies seek to enforce their rates, that the necessity for such proof could arise. The defendant claims that he is neither "occupier "nor "owner," and it is only in one of these capacities that he could be rated, and he seeks, on his defence, in resisting what he claims to be an illegal rate. To prove the contrary of the contents c? the Valuation 8011, I think I am bound to accept such evidence, and that being so, I find it proved that the defendant . was neither " occupier" nor "owner " of the property for which he is rated at the time of such valuation, and was therefore not liable nor competent to have his name inserted in the Valuation List. It then becomes the question as to whether this should not have been the subject of inquiry at the Assessment Court, and whether it is not too late to make such a defence before the Magistrate, who is merely called upon to enforce the payment of the rate. On consulting the latest authorities on the subject, I am of opinion that according to the ruling of the Court of Queen's Bench in the Queen v. Bradshaw and others, 29, Law Journal, M.C., page 176, the defendant not being an occupier or owner is entitled to make such objection before the Magistrate before whom it is sought to enforce the rate. Chief Justice Cockburn in the case, ruled —"I am of opinion this rule must be made absolute, although it appears there has been some conflict of authorities. Yet the last decision, the Overseers of Birmingham v. Shaw, adopts and confirms the case of Marshall v. Pitman, which establishes the principle that where there is a visible occupation of property within the rating? parish, and the party rated objects, that although he is in visible occupation of the premises, his occupation is altogether devoid of benefit to himself, that is a matter for which he must seek his remedy by appeal to the Quarter Sessions, and he cannot avail himself, when before the Petty Sessions, of what was matter of appeal alone. I think the principle of that decision a very good one. It is quite true that the parish officers have no authority to rate a man who is not an occupier, who does not possess, or, possessing, does no.t occupy any property within the parish, but leaves altogether untenanted, and that those facts may be relied on as a good ground of objection before the Justices before whom it is sought to enforce the rate. But if there Ire some occupation by the party rated, although it may not be beneficial, the question whether it be beneficial or not is matter for the Quarter Sessions alone on appeal. Where there is no aotual occupation at all it would be extremely hard to force upon the person rated the inconvenience of being obliged to appeal to the Quarter Sessions." Crompton, J., followed—" I should be sorry to show any doubt on the principle established that the question of actual occupation or not is for the Magistrate in Petty Sessions/ In the case of the Caledonian G.M.C., appellants, and the Waiotahi H. 8., respondents, a case on appeal from a decision given by me in this Court, *nd heard before His Honor Mr Justice Johnson in the Supreme Court at

Auckland, and reported in the N.Z Herald of 25th June, 1873; this case, Q. against Bradthaw and others, was re* ferred to in support of my judgment, which was confirmed. There the Caledonian G.M.C. admitted occupation, but claims exemption under certain clauses of the " Highways Act, 1871." It was held by the Court that occupation being admitted their remedy was by appeal to the local authorities within the prescribed time, and that the Resident Magistrate could not do otherwise than enforce the rate.. In the present case occupation and ownership is denied, and I thinkrad. mitting my reading of the 31st section to be correct, "it is a good ground of objection before me—before whom.i| is sought to enforce the rate," and, applying Chief Justice Cockburn's words to this case, " when there is no actual occupation at all" (and, in this case, no ownership), "it would be extremely hard to force upon the person rated the inconvenience of being obliged to appeal to the" Assessment Court. lam sorry that the amount of the rate sued for »top small to admit of my decision being appealed. The question is of public importance to the Borough and ratepayers alike, and I would have preferred to submit my judg. ment to the test of a supreniTGourt ruling.—Judgment for defendant with costs.,.. ....... '-,■.'..,...„.•. ...