LAW REPORTS.

Dominion, Volume 4, Issue 1165, 28 June 1911, Page 5

LAW REPORTS.

» SUPREME COURT. POSSESSION OF A CITY SHOP. OCCUPANT MUST LEAVE. I'os:>.?s?ion nf a butcher's shop iu Cuba Street was (ho subject nf an application which came before his Honour Sir Joshua Williams in Chambers at the Supreme Court yesterday. • The Horowhenua Farmers' Heat Co., Ltd., which is in liquidation, asked that G. A. Dickinson, who is in possession of the shop under a lease from Mo.-srs. Gilmer and .Maguiro, should bo ordered to give it up to the liquidator, Mr. Mackint°sh. ' . Mr. C. li. Morison appeared for plaintiffs, and Mr. A. Fair for defendant. Mr. ■ Morisou said that the of Dickinson Bros, leased a shop in Cuba Street from Messrs. Gilmer and Maguire. There was au agreement to lease under which Dickinson Bros, had possession. Thev sold the business to the Handy Food Supply Co., and that company in turn io the Horcwhenua Farmers' Meat Co., Ltd., but Dickinson Bros, were really the Handy Food Supply Co. There was no actual assignment, of lease in either instance, but possession was given and consideration passed. Tho registered offico of the Horowhenua Farmers' Meat Co. was on the premises, and G. W. Dickinson .was managing director of that company. When tho Farmers' Co. got into difficulties, and had to go into liquidation, G. W. Dickinson refused to Bive U P possession' of tho. premises, and stated that there had been 110 assignment of Dickinson Bros.' lease to tho company, and that the consent of the landlords had never been obtained to such assignment. In this way. Dickinson claimed one of tho assets of the company, and refused to hand it over to tho liquidator. He carried 011 the business there, and took the .benefit of the goodwill. Counsel submitted that Dickinson could not plead that the landlords had not given ■ their consent to the assignment, because it. was •lis duty to obtain their consent. Under these circumstances, the liquidator had a prima facie right to possession as against Dickinson. A prima facie right was all that was required for the purpose of this application, which did not affect any question of title. • Surely Dickinson was making a' most impudent claim for a managing director of a bankrupt rompany to make. It was his duty to help the creditors to get the best terms possible. Counsel accordingly applied for delivery of leasehold .to liquidator without prejudice to the liquidator's right to proceed against Dickinson for misfeasance. Mr. Fair admitted the right of the Court to make tho order asked for, but contended that the Court in its discretion would not do so under the circumstances. Dickinson, who was the original lessee, retained possession as an officer of tho company, and thus there was no breach of the lea;?, from the lime it was originally granted up to the liquidation. Dickinson, a? the affidavits showed, asked Gilmer and Maguire three times to consent to the assignment of the lease, and they refused. The secretary of the company also asked with no, better success. Counsel submitted that the company had a right of action for damages, and as Dickinson was quite a solvent man nothing could be gained by giving them possession. He was not trying to shirk his responsibilities. If on the other hand the plaintiff obtained specific performance (which was what the application amounted to), and Dickinson became liable to the landlord for damages, his only remedy would be against the bankrupt company. Jf the liquidator closed the premises Dickinson would bo liable to the landlord'for damages, and the company would not. Counsel asked his Honour to exercise his discretion to allow Dickinson to remain in possession. His Honour said the case was fairly plain. Dickinson had possession on behalf of tho company, lie had sold his business to the company and had received valuable consideration. There could bo no doubt that tho liquidator had tho right to say to Dickinson: "You have possession on behalf of the company. I now represent tho company. Give mo possession." Tje question was not between the company and the landlord or' between Dickinson and tho landlord, but simply between Dickinson and the company. Tho lease; as between Dickinson and the company, undoubtedly belonged to the company. What might happen to Dickinson in consequence of any suggested breach of covenant on bis part, was a matter with which bis Honour had at present nothing to do. The order was made as required, without prejudice to future action, on cither side; possession to bo given in seven days, and Dickinson to bo allowed in full the rent paid by him. Costs, 10 guineas, and disbursements were allowed as for a Court motion.

A MANNERS STREET PROPERTY. LATE J. JAMIESON'S ESTATE. Mr. E. C. Levvey applied to his Honour Sir Joshua Williams in Chambers yesterday for directions as to the cstato of the late J. Jamieson'. Counsel stated that the deceased left several properties which were encumbered. The principal one was the Central Exchange Chambers, in Manners Street, which was worth ,£•20,000, but was subject to a liability of between -£10,000 and <£13,000. There had been difficulties about the management, and the trustees decided to appoint a manager, who was one of the trustees, and was also a brother of the deceased, and had been practically managing the business taforc the latter's death. They proposed to allow him a salary of .£125 a year, and they asked for judicial sanction to this arrangement. His Honour made an order accordingly. A number of other Chamber applications of a formal character were dealt with by his Honour.