WRIGHT v, MORGAN

Dominion, Volume 21, Issue 245, 17 July 1928, Page 7

WRIGHT v, MORGAN

JUDGMENT DELIVERED APPEAL DISMISSEQ In the Court of Appeal yesterday judgment was delivered by Mr. Justice Smith in the case of Douglas George Wright against Florence Jenny Myra Morgan and others. “The sole question in this appeal is as to the basis upon which Douglas Wright should pay an occupation rent for the use of two estates, 'Surrey Hills’ and ‘Windermere’ (excluding Chapman’s Block),” aalil His Honour, in delivering the judgment of the Court. “It is contended for tho appellant that what Douglas Wriglit bhould pay as an occupation rent is interest at agreed rates upon the capital value of the land iu question at some period wltiiiu seven years from the testator’s death. JI ms contention is founded firstly on the fait that the trustees of the will or L. c>. Wright were not authorised to postpone conversion of the property beyond smeu veers from the testator’s death, and secondly on the fact that tho life-tenants who will 'benefit by an occupation rent acquiesced in the sale of the lands to Douglas ■Wright and were aware of the position as explained by Stout C.J. in ms judgment in the Court of Appeal, 192 a. "Counsel contends that it is fair to adopt such a basis, notwithstanding toe fact that the sale has been finally set aside by the judgment, in the Privy Council, 192(1, A.C. 788. While we think there is some force in this argument,.we are unable to accept it. An occupation rent is intended to represent the rent that would be fairly payable from year to year in respect of the occupation of the property. What the appellant proposes, is that he pay merely interest on the capital value of the property at some date within seven years of the testator's death. Ju our opinion that cannot be fairly described as an occupation rent. The admission, therefore, that an occupation rent should be paid defeats' the appellant’s argument. "Fraud is not alleged against Douglas Wright, and the basis upon which an occupation rent should be fixed depends upon the general principles of equity relative to the restoration of the parties to their original position upon a rescission of contract. . . In the present case the Judge in the Court below lias found that an occupation rent should be based on the Government valuation of the land from time, to time. In so doing he has exercised his discretion as to what is practically just in the circumstances. We agree with that decision, and the appeal must be dismissed. Subsequent experience has made it clear that for the year 1921 even Government valuations were excessive, and Mr. Donnelly has offered to, reduce the Government valuation for that year by the sum of £18,500. The judgment of the Court below will be varied accordingly.’ The appellant was ordered to pay tie costs of the appeal on the highest scale, as on a case from a distance. Mr. F. D. Sargent appeared for the appellant, and Mr. A. T. Donnelly for the respondent.