POSSESSION ORDER MADE

Press, Volume LXXXV, Issue 25934, 14 October 1949, Page 3

POSSESSION ORDER MADE

♦ AGREEMENT HELD NOT TO BE A TENANCY “I find that this was a service tenancy and not a tenancy under the act. If I could I would lean the other way, but I am bound by the facts. I agree with Mr Taylor’s submissions that either side had the right to terminate this contract of service at any time upon reasonable notice. I can not escape from the conclusion that it was a contract of service.” That was the finding of Mr. Rex C. Abernethy, S.M., after hearing a claim in the Magistrate’s Court yesterday by Kate Clark, a spinster, for possession of a house at 58 Linwood avenue from Jessie Eileen Gibb, a married woman. Mr E. B. E. Taylor appeared for the plaintiff and Mr D. J. Hewitt for Mrs Gibb. , Mr Taylor said that Miss Clark was 73 and a partial invalid. In February, 1946. Mrs Gibb, with her husband and child, went to live at Miss Clark’s home, the condition being that Mrs Gibb supplied Miss Clark with meals and looked after her. Miss Clark was to pav Mrs Gibb £1 a week. On July 7 of this year Mrs Gibb broke her arm and was unable >o look after Miss Clark. The latter had to go into a nursing home. Counsel submitted that the joint occupation agreement was a service agreement and not a tenancy and. as the defendant could not now carry out her part of the agreement, it no longer applied. Mr Hewitt said the question was whether it was a tenancy agreement or a service agreement. Miss Clark paid Mrs Gibb £1 a week lor food and Mrs Gibb had the use of part of the premises. In return she gave service by looking after Miss Clark. No money was paid by Mrs Gibb, but it had peen held that money need not be paid to constitute rent. The Tenancy Act. 1948, gave protection to borderline cases where service was given instead of paying rent. If the Court held that this was not a. tenancy agreement but a service agreement, there would be the minimum Wage Act to consider. The defendant would then put forward a counter-claim for £463 as • the balance due for wages for services rendered. After evidence had been neard. the Magistrate gave the finding stated.

Counsel conferred with their clients and Mr Taylor said it had been agreed that the defendant stay in the house for three months. A payment of 30s a week had been suggested, but the defendant considered £1 a week suffi-

The Magistrate gave judgment for the plaintiff on the claim for possession, the defendant to give possession on or before January 13. 1950, :.nd to pay mesne profits at the rate of 25s a week by agreement. Judgment was also given for the

plaintiff on the counter-claim. The Magistrate said that, in his opinion, the minimum Wage Act did not apply in this instance, as he considered the defendant was an independent contrac-