FARM RE-ENTRY.

Auckland Star, Volume LXII, Issue 228, 26 September 1931, Page 9

FARM RE-ENTRY.

FOUR PARTIES INVOLVED.

DIFFICULT IIEGAII DISPUTE.

OWNERS' RIGHTS DEFINED.

A judgment of Mr. Justice Smith in which his Honor defined important rights of purchasers under agreements of sale and purchase, was delivered in the Supreme Court to-day. The case was one in which Albert Hargreaves and Alan Kenneth Paterson, both of Auckland, farmers (Mr. Quartley and Mi". Phillips), took proceedings against Dr. E. S. Dukes, of' Auckland, and Leslie Houchen, of Hunua, farmer (Mr. Hunt), on account of an alleged wrongful reentry "by the defendent Dukes _on a dairy farm at Hunua. The hearing of the action took place on August 24 and 25.

In June, 1930, the farm had been sold under an agreement of sale and purchase by Dukes to Paterson, and on August 1 following Paterson sold it to Hargreaves for £2350. Hargreaves entered into a sharemilking agreement with the defendent Houchen. Dukes complained that a provision for the erection of a cowshed and the clearing of the farm of noxious weeds had not been complied with, in consequence of which he had served a notice on Hargreaves requiring him to carry out all his obligations within a month. This notice was not served upon Paterson though Hargreaves had informed Paterson of it.- At the expiry of the month Dukes ordered Houchen to remove his stock and surrender the property, which Houchen did. Under arrangement with Dukes, Houchen then went back as Dukes' representative.

Drove Cows Off and Back Again. His Honor found that it was clear that some arrangement had been made between Dr. Dukes and Houchen without the knowledge of Paterson or Hargreaves, under which Dukes was to tak© over the property with a view to putting Houchen in. Two notices wer© sent by Dukes, one ordering Houchen to leave the property and the other to let no on© enter. Continuing, his Honor said: "Houchen knew this was going to happen. He also knew that Dr. Dukes was going to come out. Dr. Dukes did come out about lunch time, and he and Houchen went through a form of dispossessing by Houchen driving his cows off th© property and returning with them again." On the following day, which was a Sunday, Hargreaves went out to the. farm, and was ordered off by his former share-milker, Houchen, now clothed with authority from Dr. Dukes. Hargreaves charged Houchen with "working himself in" with Dr. Dukes to do his best to get possession of th© farm.

Re-entry Invalid. Hargreaves eventually claimed a declaration that he was entitled to posesssion of the land, also £100 damages and an account of the rents and profits from March 7, 1931, the dat© on which h© was dispossessed. Paterson also asked for a declaration that his agreement, was consistent. - . .. - ...

His Honor held, without deciding th© matter, that, assuming that notice to Hargreaves was notice to Paterson, the default in erecting a cowshed could not be relied on, as the obligation was not a continuing one; and that, as Dr. Dukes had accepted interest moneys after the date upon which, under the agreement, the cowshed was to be erected, there had. therefore been a waiver of the covenant to erect the cowshed, as Dr. Dukes knew when he accepted the interest that the work had not been done.

The part of the notice relating to the noxious weeds required that they must be attended to at once. His Honor said it should have been more specifically s'tated what'was to be done at once. It was' not practicable to clear the whole farm "at once." It was not practicable for either Hargreaves or Paterson to know what he was required to do.

His Honor found that the re-entry was invalid, and that both Dr. Dukes and Houchen were, from March 7, trespassers. He made a declaration that the agreement between Dr. Dukes and Paterson was not cancelled, that Hargreaves was entitled to the possession of the land and to the rents and profits as. from that date, and to £25 damages and costs on the highest scale.