CLAIM FOR RATES.

Gisborne Times, Volume LV, Issue 6142, 28 July 1921, Page 6

CLAIM FOR RATES.

LANDLORD v. TENANT,

JUDGMENT FOR PLAINTIFF

An important judgment was delivered in the Magistrate’s Court yesterday by Mr J. S.'Barton, S.M., the case being that in which Emma Mary Dunlop (Mr F. G. Dunlop) proceeded against Arthur Shapton Richards (Mr R. B. Hill), for £l6 for rates alleged to he payable. Tlie judgment was as follows: The plaintiff is the owner of a building, in Lowe Street, Gisborne, and the defendant is now, been for some years, a tenant 'f a room in. that building. The rent was originally 20s per week; the plaintiff claims that it was agreed between her and her tenant that from 2Sth February, 1920, the rent should be 25s per week, and the tenant should pay the rates in addition. The defendant denies this agreement insofar as it relates to the liability to pay rates, and has refused to pay the rates. Tho present action is brought to recover the amount of rates due to 31st Mar.vi. 1.)21. flhe question at issue is, therefore, v- hether the plaintiff has .proved that the defendant agreed to pay the tates in question. The facts relevant to this point are. that on the 19th January, 1920, plaintiff, by her solicitor, Kane and Durnlop, sent a letter to defendant in the following terms : ‘ ‘Dear Sir, —Please take notice that from and after tho ,20th February, 1920, your rent will he £1 5s per week and

rates. Yours truly. Kane and Dunlop.” The defendant admits tho receipt of this letter. When the rent fell due again after the end of February, defendant paid £5 for the month’s rent. Mr Dunlop says that this was pursuant to an interview held in February, at which it was agreed that tho increased rent should be £5 per month. Mr Richard says that there was no interview, but that he Just paid £5 per month. I am satisfied and I find as a fact that £5 per month was agreed upon between them as a covenant variation of the term of £1 5s per week. Rent at tlie increased rate of £5 per month has been paid from February, 1920, to date. Both sides agree that no demand was made for rates till Jan., 1921, when by reason of non-payment a penalty of 10 per cent, was added by tho Borough Council. There is conflict of evidence as to what passed between Mr F. G. Dunlop and Mr Richards at a couple of interviews about that time, but as in my opinion—the defendant’s liability will depend on what passed in February. 1920—1 do mot consider it necessary to take these into account. The negotiations for increased rent are clearly ojiened by plaintiff’s letter of 19th January, 1920. There are various ways in which defendant could have replied. The best way obviously, would have been to reply by letter. If lie replied. “I refuse to pay the increased rent and the rates,” the landlord would have had to choose between continuing oil tlie old basis and ending the tenancy. If he had made a counter offer the negotiations would have been still open On the other hand, either acceptance or rejection'could be indicated by conduct, tlie landlord’s offer remaining open till the tenant by some overt act. communicated his agreement- or disagreement. It seems to me that this period of waiting, with .the landlord’s proposal in abeyance,, could not) continue longer than till the time when tho first demand for rent or rates was properly made. When the first instalment of rent or rates fell duo after 20th February, 1920, the tenant was bound to dec-

lare his attitude towards his landlord’s offer. If. when the rent fell duo in March, the tenant tendered it at the old rate of £1 per week, he would • clearly be refusing to pay the increased rent. We find, however, that lie paid the increased rent and, on his own version, he said nothing about the rates. To my mind there is only one reasonable construction to he put on that act and that is that the tenant acquiesced in the landlord’s proposal set out in the letter of 19th January. . Thei •e were only two bases of tenancy to which the minds of the parties had adverted up to this time. One was a

tenancy under which tlie tenant was liable to pay £1 per week; the other was a tenancy under which he was liable to pay £5 per month and municipal rates. Clearly the act of paying the £5 rent in March is not referable to the first of these; equally clearly it is referable to tho second. Mr Hill suggests that the payment is referable neither to the or~ ■ iginal tenancy at 20s per week nor j the landlord’s proposal for an increased rent plus rates, but is a ! counter-offer of £5 per month, with--1 out rates. A counter-offer, however, j like any other offer, must bo uni equivocally communicated to the ofi feree, and the defendant did not even j suggest in his evidence either that ho j intended this increased payment as a counter-offer or increased payment as a counter-offer or that he communicated such an intention or offer to the plaintiff. His Worship" quoted several authorities. In this case, I am of opinion that tlie the. landlord reasonably believed that the tenant had assented to her terms and acted upon that belief in leaving the tenant in undisturbed possession of the premises. I find, therefore, that the defendant assented to the terms of tho letter of 19th January, with the variation of a . slight alteration in the amount of rent, and he us liable for the rates. lam of opinion, however, that he is liable to pay only the original assessment and not the penalty of 10 per cent. The plaintiff’s name was on tho assessment roll and she received a demand dated Ist July, 1920, coupled with a notice that she was liable to be sued for the rates after the expiration of 14 days from that date and liable to pay 10 per cent, extra on tlie expiration of six months if tlie rates were then unpaid. There is no evidence before me of any definite de- i mand on tho tenant, or of any statement of tho amount he was liable to pay, or of any basis of apportionment of rates, until January, 1921, by which time the 10 per cent, penalty was incurred.

judgment is therefore given for the plaintiff for £l4 9s 3d, being £1 9s lOd for period 20th' February to 31st March, 1920, and £l2 15s 5d for period Ist April, 1920, to 31st March, 1921. Court costs £1 10s, solicitor’s fee £2 12s.