ACTION FOR TRESPASS

Dominion, Volume 27, Issue 150, 22 March 1934, Page 11

ACTION FOR TRESPASS

Information Dismissed DISPUTE OVER PROPERTY Holding that defendants were not trespassers in terms of the Police Offences Act, Mr. E. Page, S.M., dismissed an information in the Magistrate's Court yesterday brought by James Wilson, for whom Mr. W. P. Pringle acted, against Mrs. Annie Jane Doyle and her husband. The action, which was the subject of a reserved judgment by the magistrate, arose over the purchase of a property by Mrs. Doyle and her refusal to leave the house after having defaulted in making purchase payments. Mrs. Doyle, who was represented byMr. 11. P. Smythe, bought a house in Johnsonville in 1928 and paid interest and principal up to August, 1933. Her husband then lost his employment, ami no further payments were made. Subsequently Mrs. Doyle was served witli various notices, including one which purported to cancel the agreement for sale and purchase, and called upon her to vacate possession of the premises forthwith. Mrs. Doyle did not go out of possession, and on January 23. 1931, she and her husband were served with a notice advising them that they were unlawfully in possession of the premises, and warning them that if they did not leave they would be liable to a criminal prosecution. Possession not having been given, an information was laid under section 6 of Ute Police Offences Act, 1927, against defendant and her husband, charging them with “wilfully trespassing” on the property.

“The question to be decided,” said Mr. Page, "is whether defendants have brought themselves within the provisions of the section. The informant contends that a purchaser holding under an agreement for sale and purchase is a tenant at will and that when the agreement has been determined the purchaser becomes a trespasser. Two grounds are taken on behalf of defendants ; first, that the defendants acted under a bona fide belief in their right to remain on the premises, and, secondly, that as a question of title is involved the jurisdiction of the court to proceed under this section is ousted.” Mr. Page said that from the evidence it appeared that defandants considered at the time of the alleged trespass that they had some rights in the property, and that they were entitled to remain on. The female defendant had said in evidence that she thought they could not be put out till an order of the court had been obtained, and as they had paid so much in connection with the house that they could take it out in rent. Mr. Page thought that it was clear that at the time of the alleged trespass the defendants had a bona fide belief that they had a right to remain in the premises. “With regard to the second ground,” continued Mr. Page, “counsel for defendants maintains that the agreement for sale and purchase has not been put an end to. He urges that the notice purporting to be under the Mortgagors and Tenants Relief Act, 1931, is insufficient to terminate the agreement . . .

and that the purchaser has a legal right to apply for protection under the Act or for relief against forfeiture under the Property Law Act. It seems to me clear that these contentions bona fide raise a question of title, and that the jurisdiction to proceed under this Statute Is therefore ousted. “For these reasons,” he concluded, “this information of wilfully trespassing on the property must be dismissed.”