CROWN LANDS LEASES

New Zealand Mail, Issue 1680, 11 May 1904, Page 60

CROWN LANDS LEASES

! A NOVEL PROBLEM. THE WELLINGTON LAND BOARD v. PILKINGTON. A case of considerable importance to all tenants of the Crown was heard at the Supreme Court on the sth by Mr Justice Cooner, sitting in Banco. The case was one* under the Land Act (stated by consent' of both parties) between the Wellington Land Board and J. J. Pilkmgtpn, of Porrrua, and the point for decision was so novel that nothing resembling it had previously been before the Court. Mr M. Myers appeared for the Land Board, and Mr A. S. Menteath represented the respondent. Mr Myers explained that the chief point to be considered by the Court was whether the death of one of the parties to a joint lease discharged the survivor from the necessity of residence stipulated in the Land Board, lease. The question depended entirely upon the construction: to be placed upon two sections of the Land Act—sections 141 and 161. It was of great importance to the Land Board and. to lessees that those powers should be defined but so far as Mr Myers knew those' powers had not yet been legally ascertained. It seemed to counsel that Mr Pilkington contended that when one of two lessees had been resiu.ng on the land- by arrangement inter se the death of the residing partner not only exempted vthe next-of-kih from residence (as provided by the Act), bnt the surviving lessee also. Mr Menteath: The surviving lessee in this - case being the next-of-kin. Mir Myers said if there were six lessees and they were next-of-kin they would by that argument be all freed from .sidence conditions. It seemed to Mr Myers that his-learned friend was straining the provisions: of section 141 that exempted from residence on a land lease or license persons' who had acquired that land as ; next-of-kin or under an intestacy. To apply those conditions to such a case as the one' before the Court would be doing a. violence ta the Statute: and to say that because the next-of-kin was exempt every co-lessee who was also one - of the nexbof-kin should be exempt was- stretching the provisions unduly;, they were intended as a benefit, and they should be guarded—not extended- His Honor would see by reference to the: papers in the case that Mr Pilkington: had power to sell or transfer the interest of. his dead brother in the land. Mr Justice Cooper: The real trouble, I suppose, is. that he is a schoolmaster, and can't reside. Mr Myers: Then he should sell. Mr Menteath: He was, Lam instructed, L refused permission by the Commissioner of Crown Lands to sell the lot. Mr Myers: I» don't think that! '= Mr Menteath: He tried to sell his brother's portion, but could not get a purchaser. Mr Myers: The difficulty is that he is not the sole next-of-kin—the others are at Home. The Land Board says it must insist on Mr Pilkington complying with the residential conditions—that is the crux of the trouble. , Mr Menteath, addressing the Conrt on behalf of his client, said Mr Pilkington was a schoolmaster in charge of.the Porirua State school. When his deceased . brother Was engaged in country pursuits an arrangement was made; between the two under which they took up 425 acres of land at Karioi, under lease-in-perpe-tuity conditions, the brother fulfilling residential requirements. J. J. Pilkington expended <£4so on improvements to the land under supervision of his brother, but the subsequent death of the brother had led. to trouble with the Board, culminating in the present proceedings.. The provisions as to compulsory’residence, Mr Menteath contended, eould not be applied to any person who acquired the right to land under a will. The exemptions specified in the Act were, further; meant to encourage people at a distance to put their money into the work of improving Crown lands, and to give them security against such an event as the death of the resident partner. The request, of his client was quite a reasonable one, and, counsel thought, quite in the .spirit of the Act: Mr Justice Cooper did not agree with Mr Menteath as .to the intention of the provision. It seemed to the learned Judge that the intention of the Legisla-ture-was to prevent'forfeiture being made in. cases of persons who were not selectors. It would be very hard if a father took up a piece of land, for his son, and that son died intestate, without the provision referred: to. . Mr Menteath.: I submit this is a similar case. Mr Justice Copper.: But: is it? Mr Menteath: I submit niy client is just as unable to reside as next-of-kin residing out of the country. Mr Justice Cooper:: But there are others. And supposing that instead of the person who died, the schoolmaster had died—yon must -.nill contend that the .perapn who was residing on the section could' have left; Mr Menteath; The one who was residing: would take the lease as next-of-kin. There would: be no violence done to the ACt. . , ; .

Mr Justice Cooper : Well, that seems to me an absurdity. Mr Menteath.: The combined effect of sections 141 and 161 is to enact that persons holding m common will be under no worse conditions than a single person would be.

Mr Justice Cooper.: That, of course, is

your argument. It seems to me you are - stretching the. provisions of the sections beyond whatr was the intention of this Legislature. I don't say that those words in the section do not take it that ; far; but the Legislature surely did not mean that ? I - Mr Menteath : T submit that the Legislature may not have seen such an eventuality, but I say these conditions simply tend' to place the Board and its tenants-m-conxmom in a no-worse condition than a simple tenant, f If Pilkington had taken this land up himself and had died; then the Board could not have helped itself in the matter which it is how disputing. Mr Justice Cooper: The Board :has still

a discretionary power to dispense with residence; that might remove the apparent suggestion of hardship. Mr Menteath: I submit that we have no need that the Board should exercise its discretionary power; we are entitled as a right to what we seek from the Board.

Mr Menteath at this juncture desired to instance a Bill introduced to Parliament last session by the Government, but not made law, Mr Menteath's intention being to show that the Government’s intention had been to obviate such difficulties as the one comprised in the present case. His Honor, however, pointed out that the Courts had ruled that neither Parliamentary Bills nor proposals could be referred to in Court. There was no saying where the Court might he landed by the permission of such a practice.

Mr Menteath, concluding his argument, quoted section 154 of the Act, contending at some length that the powers given in case of the death of any licensee to his executors or administrators to transfer the land under certain specified conditions were, applicable to the present case. The interest of the lire Pilkington could not be legally forfeited, he being next-of-kin to the dead Pilkington. Mr Myers, replying, contended that section 154 really went against Pilkington. It gave the Land Board alternative power—power to forfeit or to put up for sale. The fact that in respect to a lease there was no similar provision went to show that the power of the Board was restricted to forfeiture.

Mr Menteath interpolated that that power did not come 'until after two years!

Mr Myers went on to say that by section 141 only exemption from residence was made possible; the tenant had still to carry out the other conditions. Mr Pilkington was seeking to get out of an avoidable difficulty he found himself in. by moving the Court. He should sell the whole property.

Mr Menteath said his client could not sell until the improvements were brought up to the standard required by the Act. He had no security of tenure while the present misunderstanding existed, and therefore he had been loth to incur expenditure. His 7 Honor remarked that the question to be decided was one of some importance. Apparently there could be no appeal from the decision of the Court, so he would take some time to consider his judgment.