POSSESSION OF HOUSE

Press, Volume LXXXIII, Issue 25272, 26 August 1947, Page 3

POSSESSION OF HOUSE

ORDER GRANTED BY COURT

“Anyone seeking to prove a verbal contract made with a person since deceased must do so by clear and convincing evidence. The evidence of the defendant and his wife does not measure up to this standard. The evidence of the defendant is contradictory,” said Mr Justice Fleming in his reserved judgment, given yes- . terday, on a claim for a writ of possession of a residential property at 27 Fairfield avenue, Christchurch. The application was heard in the Supreme Court on August 18, the plaintiff, William lan Macann, being represented by Mr B. A. Barrer. The defendant, Donald William Annett, was represented by Mr D. W. Russell. “The real arrangement between John Robertson and the defendant was a mere licence to occupy the house, jointly with himself, in return for personal services to him by the defendant and his wife. The arrangement could have been terminated by either party at any time. It depended on personal services by one party to the other, and would, therefore, terminate on the death of either. I am satisfied that no rent was fixed as now alleged by the defendant and that if the relative values of the services were ever discussed, these did not form part of the actual contract. Therefore, even if there were a tenancy at common law, it would not be one to which the Fair Rents Act would apply. That act applies only where a pecuniary rental is either payable or specified,” stated the judgment. Six Weeks Allowed “I adopt the view that the defendant held under licence from Robertson and that his right to occupy the property ceased on Robertson’s death. The plaintiff is, therefore, entitled to an order for possession. and to damages for being refused possession from the date when the plaintiff obtained title to the property, September 24, 1946, to the date of judgment, calculated at the rate of 30s a week. This, considering the value of the property as fixed by the Land Sales Court at £1350, is less than a fair rental would be, even if the house were unfurnished, but it is the amount claimed in the writ. I order that the writ for possession shall not issue until the expiry of six weeks from the date of this judgment, provided the defendant pays immediately the amount of the damages, and thereafter pays the sum of 30s for every deek the defendant occupies the property.”