SUPREME COURT.

Lyttelton Times, Volume CVI, Issue 12586, 22 August 1901, Page 3

SUPREME COURT.

CIVIL SESSIONS. Wednesday, August 21. (Before his Honor- Mr Justice Denniston.) COOP AND ANOTHER V. LAZARETTI. . This was a claim for an inj unction, an which the plaintiffs, James Openshaw Coop and John Coop, of Koitnna, sought to have the defendant, Alexander Lxzarotti, prevented from moving a house on a section on the Kaituna Estate.

Mr Beswick appeared for the plaintiffs, and Mr Stringer for defendant. The statement of claim set forth that on Dec. 12, 1900, the plaintiffs had purchased from one Thomas Wright Parkinson the block of land at Kaitnna, R.S. 34083, and had entered into possession on Dec. 20. Later in the same month they became aware that the defendant was in possession and occupation of a House and acre of land, being a rectangular' block at the south-west corner of the block. The plaintiffs claimed that the defendant had no right to occupy the land, or, if he had had a right, it had been determined by notice to quit. The defendant refused, and still refused to quit the house, and had threatened to remove, and had commenced to remove, the house. The plaintiffs claimed possession of the house and land, a writ of injunction to prevent the defendant removing the house, and such further relief as the Court might allow. The statement of defence stated that the plaintiffs were aware, at the time of the purchase, that defendant had possession and occupation of the acre of land and house. The land had been vested in trustees in 1884 bv the will of the late T. H. Parkinson, and in March, 1894, the defendant had applied for a lease of the acre of land and permission to erect buildings. On March 11, 1884, they had let. the acre to him, at a rental of 10s per annum, with a provision that he might remove the buildings. On Dec. 4, 1899, he had been called upon to vacate the site by Nov. 1, 1900. The defendant submitted that the tenancy created by the letter of March 11, 1884, and the payment of rent and occupation was nob legally determined by the notices received on Dec. 4, 1899, and Oct. 31, 1900, and that such tenancy was still subsisting and undetermined, and that the plaintiffs had purchased the block of land in full knowledge of defendant’s possession. Mr Beswick, in opening the case, said the main- questions were in law, as to the removability of the house and the possession of the land.

James Open Shaw Coop stated that the house in dispute was a six-roomed dwellinghouse, about 25ft square, of wood, with an iron roof, and built on stone piles. Plaintiffs had agreed with the vendors to fake £75 if they could not obtain possession of Lazaretti’s house.

Robert Forbes, contracting builder, and formerly a trustee under the will of the late T, H. Parkinson, gave a description of the house, and stated that it rested on large fiat stones, and. there was a cob chimney attached. The trustees had understood that the house had been built for removal.

Mr Stringer said the defendant had built the house so that it might be removed. He had taken a Government section about a chain away, and intended removing the house there. The defendant frequently accommodated shooting parties at his house, and it was for that reason he had built six rooms. Counsel contended that the house was a chattel within the meaning of the Act, and therefore removable, and the tenancy was an actual tenancy, created by the agreement, and the giving of the second notice waived the first. Mr Beswick submitted that it was an implied tenancy by the Act of 1885, as there was no agreement as to its duration. His Honor, in delivering judgment, said the defendant had put Up a building under an. agreement, which entitled him to remove it. It had been erected on flat stones on the ground, and therefore was removable. It would be absurd to say that such a structure was a fixture bemuse it was attached to a cob chimney, that was a. structure without a foundation. Without, itttendhifr : ■to Tay down a, general principle, which he * clearly desired to avoid, he thought the building, was a moveable structure.. Cfhere had been no formal notice to quit. The purchasers were entitled to make the best of their bargain, and,were justified in bringing the case to Court. Judgment would be entered for defendiaint, with costs on the lowest scale. The Court rose at 12.30 p.m.