CLAIMS FOR POSSESSION

Evening Star, Issue 17925, 22 March 1922, Page 8

CLAIMS FOR POSSESSION

CONFLICTING JUDGMENTS. A judgment of considerable importance lo returned soldiers was given by Mr J. S. Evans, S.M., at the Magistrate’s Court, Nelson, yesterday, which conflicts with that recently riven by Mr F. K. Hunt, E.M., of Wellington, who held that the protection formerly given returned soldiers woe taken away under the amending Act. Mr Evans takes a different view. The case before the court was that of Percival v. Gay, a claim for possession and rent (£ls). Evidence was given to show that defendant, who is a returned soldier, had not paid any rent since December. Tho magistrate held that there was no excuse for non-payment of rent, and made an order for possession, in default a warrant to issue. In tho course of his judgment the magistrate said: “ Tho question is, Does section 9 of tho Housing Act, 19211922, by implication repeal section 13 of the War Legislation Act, 1918, in respect to tEo protection granted by this section to soldiers and their dependents? It does not expressly do so, and if it was intended that it should, then section 9 is clumsy legislation, and very badly drawn. Subsection 1 stated tho grounds, and tho only grounds, upon which an order for possession may bo made, and appears on its face to apply to every class of tenant without exception. Section 13 (1) of 1918 rontrins a direct prohibition against making orders of possession against soldiers and their dependents, except in certain circumstances. Sub-section 2 states negatively tho grounds upon which an order may bo made in other cases. Section 9 (1) states these same grounds affirmatively, and for all practical purposes this is tho only difference between sections 13 (2) and 0 (1). These two sub-sections are therefore not inconsistent, and may stand together, though section 13 (2) has now become practically superfluous. Section 9 (2) repeals the “undue hardship” clause of former Acts, and if it were intended to repeal preference to soldiers it should have been done expressly, and not loft it to different constructions that might be put on a badly-drawn section. Implied repeals are not favored in construing an Act, and in section 9 the implied l repeal of section' 13 is negatived, because sub-section 3 of section 9 expressly declares that all the provisions of othii* enactments dealing with this question, together with section 9 itself, shall continue in force until December 31, 1922. This includes section 13 of 1918, and it is therefore impossible to construe section 9 ns impliedly repealing any of tho previous enactments on the subject, when its final clause declares that they shall remain in force. The position, then, is that section 13 is still in force by virtue of . section 9 (3). Now, section 9 (1) .is not inconsistent with 15 (2), but it is Inconsistent with 13 (1), and thjs section is a direct prohibition against making orders of possession against soldiers and their dependents, except as provided in section 9. Therefore section 13 (1) must by virtue of section 9 (5) be construed as an exception to section 9 (1). In my opinion, therefore, section 9 (1) applies to all cases except where some other unrepealed section expressly declares Chat an order shall not be made, and section 13 (1) is such a section. I hold, therefore, that tho protection afforded to soldiers by section 13 (1) is not affected by section ..'fi |l} of the Housing A.ct, lffil-1922."