RESERVED JUDGMENT.

Hokitika Guardian, 14 April 1923, Page 1

RESERVED JUDGMENT.

•SIMM! FAIL COURT APPEAL. DECISION OF JUSTICE ADAMS. i His Honour Mr Justice Adams has , given the following judgment in the appeal ol Ihoodoro Sanity (appellant l i Charles |-. Mnricc (respondent.) heard at the hi't sitting of the Supreme Court at Greymuuth. The judgment is as follows: J. A. Murdoch for appellant. J• M. Hannan for respondent. Appeal from a determination of the S.AI. at Kumara ordering the appellant to deliver possession of n tenement to the respondent and a warrant for possession to issue. On L'-th October. 1:0J the respondent entered a plaint in the -Magistrate'.' C ourt at Kumara against the appellant for the recovery of a certain tenement described as a shop situate at -■section I A A. Block If. .Mawhera (,)imy. DreyiiiotiLh, and a summons was i'sucd requiring the appellant to appear in the Magistrate’s Court at Kumara on the "th. November 1922 to answer the claim. The appellant duly appeared and alter hearing evidence and counsel for both parties, the -Magistrate reserved judgment and on 14th November made an order that Die respondent recover possession and gave judgment lor £3 3s costs, and directed that a I warrant should issue by 21st Novem- : her 1922. Ihe ease .sets out the .Magistrate s notes of evidence hut does not contain a statement of the facts found j b.v him. Jn his written judgment the Magistrate finds that there was a tenancy by which the appellant became tenant to the respondent of the premises described in the summons; tha:the tenancy was by agreement terminable by one niontli's notice in writing: that at the creation of the tenancy the District Public 1 rustee acted its agent for the respondent; and that on 7th September as siteli agent lie gave to tin* appellant 'a written notice to quit and deliver up possession of tlit* premises within one- calendar month from the date ol the notice. The following facts were admitted—-that the premises formed part of the estate of U. -Mone,. deceased, and Were vested in the Public Trustee as adniiiii-slrator: that the tenancy was created on 11th March. 1918 by agreement between the Public Trustee and the appellant; that in August 1922 the respondent became legal owner ol the premi.v. s limb’i* a cow leas.* granted to him. and the Public Trustee continued to act for him in relation to the premises: that on 7th September 19:12 the Public Trustee signed a notice addressed to the appellant in the following term.—

"Public Trust Office, Greyniouth. 7th. Sept. 1922. Mr Then Saraty, .Mawhera. Quay, t • reymonth. D. Moricc, deceased. Dear Sir— Please note that the shop premises occupied by you belonging to l In- above estate have been sold. You will be required to quit and'deliver up possession ot the said premises i 0 me within otic* calendar month from the date hereof. and hand tile key to me oi to my order. Yours faaithfidlv, T. R. Saywell. District Public Trustee. That this notice Mas enclosed in an envelope addressed to the appellant and was left on the loiinler at the shop that .MBs Saraty. a sister of the appellant, found it there and gave* it to the appellant about 3 days later: that the appellant failed or refused to deliver up pos'cssion of the premises alter tin* expiry of the notice and that on 2 1 lli. October 1922. the respondent moiled the sum ol £A from ihe appellant u hit h I * accepted a - rent lor Die premises lor the period lioin PUh September to tilth. October and [oi which he gain the appellant a receipt in tin* rent hook,

A pivlimiimi \ objection in this appeal was taken by Counsel for the respoiident that lhe proceedings in the Magistrate's Court at Kumara were a nullity for the reason that the plaint under Section 109 of the .Magi-traie's Court Act must la* entered in the Magistrate’s Court nearest to the lolalitv in u liieh the premises are sitilaed. which in this ease was the Court of Greymouth. But tlm appellant having appeared on the hearing at !vlima la and contc* led t In* i as.* «it bout raising any objection to tin* proceedings in that Court must he held to have acquiesced in i!:-.* course adonod hi the respondent. Section 3 oi Hu* Inferior Courts Procedure Act 1999 therefore applies, and the prove dings arc as valid against him a- il the defect or error had not existed. The next objection taken was ilm 1 there is no right ol appeal in tenement (uses under Sections 199 to 172 Magistrate's Court Act. This question was considered in Aitken v. Small lev—'l92!

C.L.B. 92—in which case Sir John Snlniond. Justice, held that the Act gave no right of appeal against the refusal of an order for possession, hut idler careful eon.'ideration of the legislation on the subject from the. Resident Magi' trato’s Court Act, IS<>7 to the present Act. including Section |.57 and 171 of that Act. expressed the opinion that the provisions of these Sections, imperfect ns they ivrc. are probably sufficient t > preserve in existence the right of appeal which undoubtedly existed up to the passing of the Magistrate's ('unit. Act 1.893. The provisions of the .Magistrate's Court Act. 1908 with relation to appeals are contained in Sections 1.53 t*i I(>I. .Section L 57 provides that “after hearing the appeal, the Supreme Court may. in the case u here an order has been made for the delivery of possession of any teneinenl. may order redelivery thereof to he made." Sub-section (3) ol Section 171 provides iliat no warrant granted under the Scc-

tion to n bailin' or c-misiiil.ili> requiring liim to cutor upon tlie promise l : run! put the lamilord in possession. shall he registered against the land until alter the expiration of the time allowed for giving security on appeals. The power given to this Court hy Section 1."7. alter hearing on appeal, to order redelivery of a tenement implies of necessity the power to hear and determine an appeal against an order to deliver possession to the landlord or other per--oils in whose favour the original order was made, and a corresponding right in the person against whom that order was made to appeal to this Court, since otherwise t-lin.t part of the Sect inn would have no effect. Further, it there is no right of appeal the proviso to Station 171 Cli which T have cited would have no “raison d’etre." On first impression there appears to l-e an inconsistency in the view that the right of appeal is given against an order for delivery of possession of a tenement and not also against a refusal of an order, lmt no estoppel is created as between the parties hy the granting or refusal of an order lor delivery of possession, and on a refusal of an application the parties are left in statu ijini. The land lord or person aggrieved hy the refusal of any order may therefore obtain complete redress hy an action for piossessjon in this Court. Where an order is made, however, the iK'i'son in possession can only obtain •i vit.iv of execution liy giving .security under Section 17S. lev a bond with two unproved sureties, to sue the person to whom the warrant wa- granted and to nay all the costs of the proceedings in the event of judgment tor the defendant. Moreover in any -mil action the burden of proving that, at the time the warrant was granted, the person applying for it had no lawful right to the possession of the promise.-- would lie on the plaintiff. The objection that there is no right of appeal in this ea-e therefore tails. The appellant submits that by the acceptance of rent up to the 24th. October a new tenancy was created. In inv opinion it hi- submission is corred. The respondent admits that tl stun paid on the 27th. October was tereiyetl by his agent the Public Trustee

as rent—tin’s was indeed stated by l lie Loral Deputy Public Trustee. Mr Saywell. in his evidence for the respondent before the Magistrate. The result of the aicopiance of rent by a landlord lor a period after the expiration of a notice to quit is. stated in the judgment of Mr Justice Husking in Sue Sing v. Smith. 1922 0.1.. R. 2(«h “Now. it is perfectly clear at common law that in the ease of a tenancy determinable by a notice to quit Hie tenancy absolutely comes to an end oil the expiration of the notice. and that the tenant’s possession is therefore wrongful, and continues to ho so unless and until some express or implied agreement to the contrary exists or arises. Such an agreement may he evidenced by or inferrable from the acts of the parties, of which a frequent example is

the payment and receipt of rent h liieh ha.s accrued due alter the expiration of the notice, and then if nothing more than tha*. appears in the transaction, the only inference to be drawn is that (to use the common expression) the notice to quit has been waived.’’

I respectfully agree with these statements of the law and do not think it luassaiy to discuss the recent cases on the point which are referred to in that judgment. It was, however, argued by Counsel for the respondent, that the. .Magistrate, has held, that the respondent is entitled to invoke for his protection tha provisions of Section 73 of the Public Trust Office Amendment Act 1921-22. This is a startling proposition. The Section reads as follows :—• 1. —Notwithstanding any law to the contrary every tenancy created by the Public Trustee, shall, in the absence ol any written agreement to the contrary, be deemed to be it weekly tenancy determinable at the will of I Is-.* Public Trustee or of the tenaiic.i by one week's notice in ii riling. 2.—“ When any notice to quit has been served by the Public Trustee on any tenant or lessee or other notin* of the termination of the tenancy or lease given, the acceptance by the Public Trustee or any omeer j or agent of the Public Trustee of I any rent after the giving of such no- ! lice, shall not. he deemed to be a j " aiv; r of such not ict.’’ j The argument is that as the tenancy wax “created” by the Public Trustee Hu* respondent can shelter under u.l all hough the Public Trustee n'.-et d to l”' Hie oivncr oi tin* property when the new lease v.as granted to the re- : spomlent in August 1922. The short ; answer to that is that the Act came ! into lorce on the Iltli. February. 1922. : and can apply only to the tenancies j created alter that, date by the Public' I rustee as landlord or lessor, 'tins tenancy was created in March 1918 by tic* Public Trustee as respondent's

agent. Clio notice referred to in Subsection (2) must he a notice served hv the public trustee a., landlord ol' lessor. It mil.* indeed he open to argument whether Sub-section (2) ha any effect at all. A notice to quit cannot In* waived. The old tenancy was determin'd by the notice, and a new tenancy was created byxfche payment and acceptance of rent. The Section appear: to have been marled under a misapprehension of the law. I have assumed that, the Magistrate nas right in holding that the notice to quit was sufficient, Init that is not free from doubt. If. however, it was not sufficient i here can he no question that the order appealed from ought not to have been made.

Tin* Magistrate seems to have tliouphl iliat a memo:-,amliim In tlio rout hook eoulaiuinp; printed tomiilmns of t< nanev ami -iyned liy Mr Bush. 11 1 <• rout tollecior constituted all aeroonient in writing' belli it n 11 in parties, anil that lie Intel jurisdiction to rectify tins on the yrouiid ol mu: mil mistake. 'I lie memo. i> not siyiied by ' iil.tr of tin pat ties, to the ay i lenient, ami the rent < "lit* tor ha'! no authority to lyii 11. It i- therefore not •■veu a memo, • ullieif lit Pi sail i'y the Statute ol l-'l'St lids. There is no uecasion to rectify it. But it it clear (bat the j uri-diet ion yiven lo Maui-ir.ites iiniler the .Maoistrales ('.cup. Am does not im hide the power in reetilv document.- on the yirouml til mistake. The Msici.-i ra If i- en surer ./round v. hen 1 1 e liiuls as a tai l that the ayrcetl upon was one delcr--111 in ah le hi' one month > no 1 1 ee in i\ i 1 1 - in.A. d: terminal i.til of llie -are' Maei-Tral" ::! (,r. \ mouth. Oil nil Dec. B l '-’-' ~1.011 a plaint, mil. red i,y tie- respondent in that Court hv which ‘lntel - mination tile appellant ua- order."! m deliver possession .if itie -ame ] ti'eni to li:o re-|i'miieut. ami tim i--m' "t a warrant I'or pus-ess'iou iva- also orderTile prnceedini's noon ivhieh I hiappeal i- I'outided were commenced ami carried lliroiieli under the impression that the pi'nceediiifjs at Kumara which Here “lie suiiieei "I the hr-i appeal v. ere a nullity. I have already shetvn that this teas' v.womi. The fat Is in tins appeal are identical with ihv !'a"ts in il 10 other and the emuiids of appeal are the same. Until appeal- will he allowed with costs L'l'i (js ant! (li-hurseineius in each , a.-e. The appellant is also entitled ! *. tiic to-t.s of the procc time's in ’-he Maeistrale’s Court £:t :t- ; n each case. Separate judgments will he enteretl in the Magistrate’s Court at K umara and (,'reymouth a* rordin"ly. An order lor delivery of pes-es-ion id the premises will not he made m the meantime as it appear- probable mat the interests of panics who are not hefurc the Court mi/hl he aliected. j’otli appeals will he adjourned tor fun lief’consideration and leave is reserved to the appellant to apply on notice for an order if so advi-od.