FENCING CLAUSE

King Country Chronicle, Volume XXXI, Issue 4954, 11 February 1937, Page 5

FENCING CLAUSE

TROUBLE OVER LEASE. BREACH OF COVENANT ALLEGED. For alleged breach of a covenant in a lease of grazing land to repair fences, Metcalfe and Broadfoot in the Magistrate’s Court on Tuesday claimed the sum of £25 8s from J. C. Mullins, this being the amount which was required to bring the fence into good order. Mr. Mackersey represented the plaintiffs. For the defence Mr. Paterson admitted that the clause in the lease that Mullins should undertake to keep the fence in good order and repair was conclusive in law, but contended that, as the fence when Mullins took over was in a poor state, the Magistrate should judge the matter under the equity and good conscience provision in the legislation. Mr. Paterson submitted that the defendant had been trapped, perhaps not intentionally, in giving a covenant to deal with more than fair wear and tear of the fences. Mr. Levien, however, held -that this case was not one where the equity and good conscience principle should be applied—he did not deem it to have been a case where there had been any sharp practice. The case was adjourned to permit the calling of a further witness, but Mr. Levien suggested that in the meantime a settlement might be arranged between the parties. G. Albrechtsen stated that when a stock company gave up the property 12 months before Mullins took it over for his three years’ tenancy the fences were in good order and they could not have deteriorated greatly in a year. No question as to the condition of the fences was raised by Mullins. Mr. Paterson held that the fencing clause was put in to trap Mullins into providing a new fence, but witness denied this. The area just paid the rates on it, and it was essential that the fences should be kept in good order to retain the value in the property. William Waugh estimated that the cost of putting the fence in good repair would be £25 Bs. J. C. Mullins said he told Albrechtsen he could afford to pay only £l4 for the 10-acre property. Albrechtsen wrote out a lease, and this was typed and he signed it. When asked whether the fences were all right he said they were sufficient for his use. He was told he would have to take general care of the property, but the '> fencing clause was not particularly \ explained to him. The first man he had on put in nine posts and 50 or 60 battens, and during the three "years of his tenancy maintenance was carried out—he said he left the ; fences in possibly better condition ? than when he took it over. Thirtynine posts and 100 battens would have put the fence in reasonable order, and a quarter of this would be spent on a place where the fence was' down when he took over the property. The fence he understood was 20 years old. Mr. Mackersey said that Mullins had been loath to carry out any of the three covenants of the lease—to keep down noxious weeds, to resow ploughed land, and to keep fences in good repair. The hearing was then adjourned.