LICENSE OR RENT ?

Auckland Star, Volume LXIV, Issue 204, 30 August 1933, Page 8

LICENSE OR RENT ?

RACECOURSE BOOTHS. CLAIM AGAINST TENDERER. VERDICT FOB JOCKEY CLUB. The deducting of 20 per cent from £550, the amount tendered for the right to sell liquor on the course during the holding of the Takapuna Jockey Club's t race meetings last season, led to a claim for £110 coming before his Honor Mr. | Justice Herdman, in the Supreme Court J this morning. Plaintiff was the Taka--1 puna Jockey Club (Mr. N. Hubble) and j defendant C. E. Falkncr, liotelkeepcr (Mr. Northcroft). The point ill dispute was whether the amount tendered for the rights and privileges to sell liquor on the racecourse was rent, and therefore subject to the 20 per cent deduction as provided in the National Expenditure Adjustment Act. Mr. Hubble said tlie facts were very - clear. The Takapuna Jockey Club each 2 year conducted two race meetings, of two days' duration each, the first meet- , ing of the season being held in Novem- . ber and the second in January. The t practice of the club had been to call . tenders for the rights to sell liquor at > the booths on the four days, and in 1931 ! tenders were invited, the tenderers | having the option of tendering tor the I rights for either one year or three years. The defendant Ealkner's tender of £1650 for the racing seasons 1031-32, 1032-33, and 1933-34 was accepted, and at the end of the first season defendant paid £550 to cover the first of the three " seasons. At the end of the second sea- > son, 1932-33, defendant paid only £440, ' contending that he was entitled to ' deduct 20 per cent, or £110, as provided for by the National Expenditure Adjustment Act in the case of rents. > "The defendant contends that the : money paid by him for the rights to 1 sell liquor is rent," said Mr. Hubble, "but we say it would be absurd to sug- ! gest he pays the amount to occupy certain premises, and we contend that it is paid for the rights to sell liquor only. That is the only point in dispute." i Robert A. Spinley, public accountant, and secretary of the Takapuna Jockey Club, said there were three places at which liquor was sold on the course on race days. The successful tenderer would be in possession of the booths, or bars, from the Thursday prior to each meeting to the Tuesday following, and would not have possession at any other time during the year. Mr. Northcroft said the essential point hinged upon whether the defendant had the sole rights as lessee or licensee. Case for Defence. Mr. Northcroft called the defendant, Charles E. Falkner, who said that on the day following the keys of the inside and outside booths and the members' bar being handed to him he had the locks changed and had given one set of keys to the caretaker. Since taking possession he had paid for painting and shelving done at the booths. To His Honor: He had done the work on his own responsibility, after getting the consent of the secretary. Defendant said he had maintained the buildings and made exclusive use of them. During the race meetings he had employed two nightwatchmen. In legal argument, Mr. Northcroft said that the Jockey Club had no authority to authorise anyone to sell liquor on racecourses. All it could do was permit some person, holding a license, to come to the racecourse and sell liquor. There was no authority giving the club power to . issue rights. Only the holder of a publican's license could obtain a conditional license, and the holder himself had to make application for a conditional license to the licensing committee. The Jockey Club took no part in the issue of a license, and itself could not make application to the licensing committee. The question in the present case was one of rights under the document , signed. That document provided the J defendant was to have the whole rights , for the sale of liquor at the inside and . outside booths and members' bar, and . counsel submitted that the meaning of 1 the words "whole rights" included the exclusive possession of the buildings set ' apart for the sale of liquor, and there- . fore there was a tenancy. ' English Authorities. ] In support of his contention Mr. 1 Northcroft quoted several decisions by English judges. The agreement between the Takapuna Jockey Club and the defendant definitely set out the particular places where the liquor could be sold, ind the. license and agreement did not allow him to sell anywhere on the club's property other than in the places stated; therefore, counsel submitted, the defendant was a tenant and not a licensee. The position was very different from the rights given a person to sell refresh- . merits and sweets in a theatre, where the person holding the rights had the . run of the whole theatre. j In giving judgment his Honor said the • contract between the Takapuna Jockey 1 Club and the defendant was entered into • on November 3, 1931, defendant then being the holder of a publican's license. For the rights to sell liquor at the out- 1 side and inside booths .and members' bar the defendant agreed to pay £1650 for the three seasons. At the end of the first season he paid £550, but for the second season, 1932-33, he paid £440, retaining £110. Whether he was liable to pay the £110 retained depended upon whether the relationship of landlord and tenant had been created. "It is quite clear that the relationship of landlord and tenant never existed at all," said his Honor. "Defendant did not have the exclusive rights to the buildings, but merely the right to use them for the purposes of carrying out his business. There are no words in the contract to indicate an intention by the parties that a relationship of landlord and tenant should be created. There is nothing in it to give him the exclusive use of the premises. I come to the conclusion that this case does not come within the provisions of the National Expenditure Adjustment Act. Defendant had no right to retain £110. Judgment will be for plaintiff for that amount, together with witnesses' expenses, costs and disbursements according to scale."