FIJIAN PROPERTY CASE

Evening Post, Volume CVI, Issue 28, 2 August 1923, Page 8

FIJIAN PROPERTY CASE

PRIVY COUNCIL APPEAL

HALLEN v. SPAETH.

(FROM OUR OWN CORRESPONDENT.)

. LONDON, 15th June. Last week the appeal caae, Arthur Herbert Hallen, v. Fredei ick Benjamin bpaeth, was heard before Viscount Haldane. Lord Buckmaster, Lord Pamioor, and Lord Trevethin. This is an appeal by Hallen (appellant) from a judgment ot the Supreme Court of Fiji, dated 26th October, 1922. The appellant is, and has been for many years, the sroßrietor of a freehold estate on the Island of Viti Levu, containing some 8000 acres, and ■known as "Tawarau" and "Ravi Ravi." In 1911 4000 acres of this property was leased by-the appellant to Spaeth (respondent). The term was for teii years at an auual rent of £800. The lease contained the following clauses: (1) The lessee shall have the option of leasing the premises for a further term of ten years, computed from the expiration of the term hereby granted upon terms and conditions to be agreed between the parties hereto, provided always that if the parties hereto fail to agree upon the terms for such further lease then the lessor shall purchase by valuation the buildings erected by the sa?d lessee, and also the growing crops, stock, and implements, and shall also take over the unexpired terms of the indentured immigrants working upon the lands hereby demised. (2) If the parties hereto shall be unable to agree on the valuation all matters in difference in relation thereto. shall be reTerred to the arbitration of two indifferent persons, one to be appointed by each party and every such arbitration shall be subject to the provisions relating to arbitration contained in the Common Law Procedure Act. 1854.

The lessee sub-let to Hugh Hill Ragg and Bryan Hanby Holmes, the instrument containing precisely the same terms ac the original lease, except that the rent the two latter were to pay was £1400 a year for eighteen months, and therefore £1600 a year. Race and Holmes spent money in buildings, and in the purchase of stock and implements, but they did not make,a financial success of the property. Holmes died at the war, and Ragg- executed liens over the crops to the Colonial Sugar Refining Company, and- before the expiration of the lease became bankrupt. CLAIM FOR STOCK.

_lrevious. to the termination of the lease, some negotiations took place between Hallen and Spaeth for a renewal, but no agreement was come.to, and the day after .-the expiration of the term the respondent delivered up the premises with the buildings, crops, stock, and implements to appellant's agent. The appellant repudiated all liability for or interest in the stock and implements and claimed to be entitled to the land and every thin- attached to the soil without payment of any compensation. Accordingly on 10th July, 1922, the respondent instituted'this action and claimed a declaration that the appellant was liable to him under the covenant for the value of the buildings, growing- crops, stock, and implements on the demised premises and payment of the sum of £5562 10s as the value thereof.

The trial of the action took place in October, 1922. before his Honour Kenneth James Muir MacKenzie, Acting Chief Justice, who delivered a written judgment ordering that judgment be entered for the respondent for the sum of £4544 10s, and costs to be taxed. Final leave t 0 appeal to His Majesty in Council from this decision -was given. His Honour, the Acting Chief Justice, treated the instrument executed by the respondent in favour of Rage and Holmes as a sub-lease, and not as air assignment, though he-expressed a doubt whether it did.not amount to an assiirnment; In the appeal case Mr. T. J. C. Tomlin and Mr. H. H. Ostler appeared for appedant. and Mr. W. B. Green, K.C., and J. H. Stamp, for respondent.

APPELLANT'S CASE, For the appellant counsel submitted ■ that the judgment of the.Court should be. set aside, amongst other reasons, because the. lease by the respondent to [Ra.iHr.and Holmes was, an assignment of the respondent's whole interest in the lease from the appellant, and the reI spondent, having assigned his whole interest in the lease, hud no right of action against the appellant under it. Because the buildings included in the alleged valuation were .buildings erected by Ragtr and Holmes, and the crops, stock, and implements included therein were not at the.expiration of the Head Lease the property of the respondent. Because there never, was any agreed valuation between the appellant and 1 respondent pur- | suant of Clause 2 of the Jease. Because havingregard to the nature of the action and the circumstances of the case His Honour the Acting Chief Justice had no jurisdiction to determine the question of value. RESPONDENT'S CONTENTIONS.

Counsel for respondent maintained that when the demised estate was delivered over to the appellant at the end of the term the rights, of the sub-lessees in the buildings, crops, stock, and implements had passed to the respondent by virtue of the provisions of the sub-lease. The right of the respondent to enforce the covenant was not contingent upon his having made a definite and formal offer for the renewal of the .lease that could be. accepted and acted upon without further negotiation. The appellant- was not at, the institution,of the action ready arid willing to submit to arbitration a'nv questions between the parties. Tliero was notbin<r to prevent the Court from adjudicating upi.in the whole of the questions in. issue between the parties. Further, the .appcallant by his agent look over from the respondent the buildings, growing crops, stock, anil implements in question, and was bound to pay for the same accordingly..: Judgment.was reserved.