LANDLORD & TENANT

Evening Post, Volume XCV, Issue 140, 13 June 1918, Page 2

LANDLORD & TENANT

CASE FROM GREYTOWN

EIGHTS OF A BESERVIST,

Interesting points were involved in a judgment delivered by his ffonour Mr. Justice Hosking- in the Supreme Court this morning, in the case of Sam Haigh, farmer, Greytown, v. James William Dyer, butcher, formerly of Greytown, and now in camp. Mr. G. Watson appeared for the plaintiff, and Mr. P. J. O'Regan for the defendant.

In giving judgment, his Honour said the action commenced on the 19th April, 1918. The plaintiff sought to recover the sum of £24 6s 8d for two months' rent; due on Ist April, 1918, under a deed of lease from him to the defendant. He also asked for a declaration that the lease was non-binding. The lease was of two distinct properties—one a butcher's shop, the other a slaughtering paddock. The lease contained covenants by the tenant to pa-y all rates, taxes, "and assessments" in respect, to the shop, the plaintiff paying rates on the paddock. ' Tho lease also contained a covenant by the tenant to repair and keep in repair and. keep open and use the shop for the business of a butcher. The landlord covenanted to paint the shop within two years. 'It appeared that towards the end of 1916 the District Health Officer gave written notice to the defendant -requiring certain improvements to be effected in the butcher's shop within three months. The defendant replied to this that he considered the matter shpuld. be attended ■to by the landlord, the plaintiff* A similar notice as that given to the defendant was thereafter served on the plaintiff. The parties mSt, but. no arrangement was made. On the expiration of three months the Health Officer, on 25th April, 1917 > required the defendant to cease to upe the premises, and ■notified him that thirty days would be allowed him in which to find other premises. In order to fully comply with, the requirements of the Health Department, certain structural alterations were alleged to be essential, a.nd these the , defendant refused to make, and th*e landlord likewise denied his liability to do so. The defendant proceeded to erect another shop for himself on land of his own. He occupied portions at least of the building of which the shop formed part until he removed altogether to the new shop. He altogether quitted the whole of the leased premises before the rent due on Ist March became payable, and paid all rent up to that date. The defendant contended that he was not liable for any rent after Fpbruary. His contentions in effect were :

(1) That the terms of the lease had become impossible of performance without any neglect or default on his part by reason of his having been called up under the Military Service Act, 1916. He whs, ns a fact, drawn in the ballot in June, 1917, but was not required to enter camp before 6th February last. (2) That the landlord had not painted the premises, as covenanted. This was admitted.

(3) That it was the plaintiff's duty to comply with the requisition of the Health Officer so far ns structural alterations were necessary, and" that, by reason of plaintiff's default in so doing, the defendant was deprived of -the use of the shop, and was, in effect, evicted from the premises by the plaintiff. His Honour said he was obliged to hold all these points to be insufficient for the purpose of discharging the defendant from his liability under the covenant to pay the rent implied in the 'ease by force of the Property Law Act, 1908. '

Tho War .Legislation Act, 1917, did not assist the defendant for- that purpose, although it enabled him to apply to a Magistrate for relief, which, it was stated, that he had not done earlier in consequence of these proceedings, but intended to do so when they had terminated. Tho performance of the covenants contained in the lease was not rendered impossible by his obligatory seryice under the Military Service Act. The performance would be sufficient if rendered by an assignee or by his personal representatives in case of- death. Nor could the non-performance by the plaintiff of his covenant to paint entitle the defendant to quit or to refuse to pay the rent. There was no condition in the lease enabling it to be determined for a breach of that covenant, and no such condition could be implied in such a case. Neither could what happened by reason of the action of the Public Health Officer relieve the defendant from liability under his covenant for the payment of rent. The plaintiff's application for n declaration that the lease was binding was, his Honour thought, unnecessary. , Judgment was given for the plaintiff for the sum of £28 6s 3d, with costs on the Magistrate's Court scale, including the costs for the change of venue from Masterton to Wellington, £2 2s, and disbursements.