TENANCY DISPUTE

Dominion, Volume 31, Issue 42, 13 November 1937, Page 7

TENANCY DISPUTE

Possession Of Maternity Hospital APPEAL DISMISSED Dismissing the application of the appellant, the Court of Appeal, iu its reserved judgment delivered yesterday, upheld the decision given by the Chief Justice (Sir Michael Myers) in a Takaka tenancy cane at Nelson last July. 'Che appellant was Ethel Bethune, nurse, of Takaka, and the respondent Dr. E. C. Bydder, also of Takaka. In his judgment, Mr. Justice Ostler said that the appellant, a trained nurse, was the lessee for some years at a rental of £6/5/- a month of a house at Takaka. From 1927 she used it as a private maternity hospital. The premises were continually licensed as such under the Hospital and Charitable Institutions Act, 1926, from 1921 until the license was finally surrendered on April 30 1937. The resixmdent purchased the freehold in August, 1936, mid on September 30, 1936, served one months notice to terminate tenancy on the appellant, who refused to vacate the premises. On December 22, 1936, the respondent issued a summons against her for possession and mesne profits. The action was heard before a magistrate in Julv, 1937. The appellant raised the defence that the tenancy was protected by the provisions of the Fair Rents Act. The magistrate's judgment was that as the supply of patients had fallen, the premises were used as a dwelling-house, and, therefore, came under the Fair Rents Act. He accordingly refused to make an order for possession, entering judgment for the appellant. . ~ Ten days later the respondent, in the Supreme Court, Nelson, commenced an action for ejectment against the appellant. He pleaded that tenancy was terminated on November' 1, 1936, by a month’s notice in writing served on the appellant on September 30, and asked for an order for possession and mesne profits. In her statement of defence, the appellant admitted holding the licence under the Hospital and Charitable Institutions Act, 1926, authorising her to use the dwelling-house as a private maternity hospital. The appellant pleaded that the respondent was estopped by the judgment of the magistrate from proving that the premises were not subject to the provisions of the Fair Rents Act down to the date of that judgment, and that since that date the premises had been used as a dwelling-house. The Chief Justice, who heard the Supreme Court action, held that the magistrate’s judgment created no estoppel, and that, in fact, the premises were not subject to the provisions of the Fair Rents Act. He gave judgment for the respondent. “I agree with the conclusion reached by the Chief Justice that the dwellinghouse never came within the provisions of the Fair Rents Act, and I agree with his conclusion that the magistrate’s judgment created no estoppel,” said Mr. Justice Ostler. The other members of the Court of Appeal agreed that the appeal should lie dismissed.