CONDEMNED BUILDING

New Zealand Times, Volume XXXIII, Issue 7451, 27 May 1911, Page 1

CONDEMNED BUILDING

MAGISTRATE’S DECISION TO COME DOWN WITHIN THIRTY DAYS. His Worship, Dr A- McArthur, S.M., delivered his reserved judgment In tho Magistrate’s Court yesterday in the case in which James Doyle, chief inspector to tho City Corporation, proceeded against Hamilton Gilmer, owner of the promises in which Warnock and Adkin had carried on business as drapers iu Lambton rjuay, for failing to comply with a notice to pull down tho building, which had been condemned by tho District Health Officer, Dr Frcngley. The notice to pull down tho building was given under .section. 291 of tho -Municipal Corporations .let, IJKJB- Tho j>roceduro was earned out under paragraph two of tho twelfth schedule of tho same Act. THE AGREEMENT.

"A similar information in respect to tho .same building," said h:s Worship, “was la-d in the year 19117 and came before the court on December Uth of that year. No defence was heard, as the matter was- settled by the parties according to agreement put in,, and costs wore arranged between them. The agreement was put, in on the following day, December rath, 19d'L and is as lollowa: — 1. The following improvements to be done forthwith to tile satisfaction of tho city engineer; U) improve ventilation undo?neatli doors. (2) rreveut sunauc drainage irom getting iu at the bad: of bunding. 13) Provide ventilators in the upper story of budding. (b .Lavatory basin to bo put right. to) Office to bo removed or improved to tho satisfaction ot the engineer. Z. In the event ol the building becoming ruinous or auapinated. tne City Corporation reserve tneir r.gnt to proceed utiucr section J 59 ol the .Municipal Corporations ACC.

o. In case any further condition should arise which in tno interests of health should necessitate the Health Officer re. quirmg. in the interests of public health, lurther workii on the premises, thou the owner shad forthwith execute such works so far as ho can lawfully do or procure authority to do. it being left to the Health Lepartment not to require unnecessary works. Having regard to the necessity of pulling uown tho nuilding and to all tho circumstances. \ 4. line owner to pull down and remove the building within three years irom date. 5. Leave to apply if works not carried out within three mouths.

The agreement is signed by counsel for tho owner and by tho city solicitor. X have recited tho agreement in fud, as, in my opinion, it is of-tho utmost importance on the legal aspect of the case. The reasonable meaning of this agreement is that certain improvements were to bo done forthwith, and further improvements if (found necessary; that if the building became ruinous or dilapidated the corporation should proceed, under section 350 of the Municipal Corporations Act; that tho owner should puli down or remove the building within three years; and that if, the works stated were not carried ont within three months, leave to apply for an older be granted. 'The three years’ life extended to tho building expired at the end of the year 1910. In February, of the present yeaf, application, was made to me by the city solicitor for an order to pull down tho building; in other words asking mo to enforce a specific agreement between two parties. As the matter had not been left to. tlio court, but had been settled by tho parties themselves, I did not consider that, as a matter of specific performa.peu it was within the scope of tho jurisdiction of this court and thus declined to make the order based on that agreement, on tire ground that I had no power to ;dt> so. New proceedings have been taken and I have heard tho evidence of both parties. At tho close of complainants case counsel for the complainant put in the agreement which I have recited. Counsel for the defendant objected.. I admitted tho agreement and am satisfied that I was right in so doing. DEFENDANT ESTOPPED. Counsel for tho complainant contended that tho defendant was estopped, by reason of the agreement signed by him, from sotting npi a different set of circumstances from those set out in the agreement. • This leads mo to consider the doctrino of estoppel and the results which flow therefrom and which X consider applicable to the present ' case. Estoppel may bo defined as a disability whereby a party i a precluded from alleging or proving in legal , proceedings ■that a fact is otherwise than it has been made to appear by tho matter giving rise to disability. Where ono has either by words or conduct made to another a representation of fact with the intention that it should bo acted upon, or has so conducted himself that another would, aa a reasonable man, understand that a certain representation of fact was intended to, bo acted on, and that other has acted upon such representation and thereby altered Ills position to his prejudice, an estoppel arises against the parly- who made tho representation, and ho is not allowed do aver that the fact is otherwise than ho represented it to bo. Estoppel is not a cause of action, but a rule of evidence to prevent a person from denying what he has onco said; he.is to be put in tho same position as if the statement were true. A representation, to found an estoppel, must be such as will be reasonably understood in tho sense contended for, and for this purpose the whole of tho representation must bo looked at. It is not necessary that the representation should be false to the knowledge of the party making it provided that (I) it is intended to be acted upon in tho manner in which it was acted upon: or (2) the person who makes it so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it in that manner.” JUDGMENT FOR PLAINTIFF. Aften quoting legal authorities, his Worship said: "I have based this judgment on a careful perusal of tho text books on the subject and the principles laid down in many cases. On the legal aspect of the case I am of opinion that tho complainant must, succeed and the defendant fail. I therefore order that the building bo taken down within thirty days. Should my judgment be upset on appeal I shall then bo prepared to consider the evidence laid before me." Mr J. O'Shea, with him Air Neavc, ap-peared-for-complainant, and Mr T. W. Hislop for defendant.