“SOLDIER TENANTS”

New Zealand Times, Volume XLIX, Issue 11224, 1 June 1922, Page 6

“SOLDIER TENANTS”

IMPORTANT ISSUES LIMITATION OF THE TOWERS OF LANDLORDS. SUPREME COURT TEST CASE. In tho Supremo Court yesterday, before Mr Justice Salmond, there ■was brought up a test ♦case of verygreat interest and importance in its relation to the legislation affecting soldiers and returned soldiers as tenante. In this ease the premires were a shop and dwelling rented by a, ioturned soldier (Robinson), at £2 10s per week. The appellant. William Robinson, of 61, Riddiford street, Newtown (cycle agent), was represented by Mr G. P. Skerrott, K. 0., and Mr J. V. li. Stevenson; the respondent Archibald Lawv/j (a commercial traveller), being represented by Mr R. Kennedy. PROTECTION OF SOLDIERS. The point really at issue in this rase was whether or not the privileges and protection from ejectment, afforded by special legislation to soldiers anu discharged soldiers, had been repealed by section 4 of the Housing Amendment Act, 1921. In opening his address to the court, Mr Skerrett said that, practically, thore was no. evidence in the case other than tho evidence of the plain tiff. Tho main matter to be emphasised in dealing with the case, said counsel, was treated of in the Housing Act of 1918, which, in its wording, specifically regarded soldiers and discharged joldiers as? persons to whom the State Was in debt for their services rendered. They wero therefore' regarded by the Legislature, said counsel, as persons ontitled to tho special protection of the State, which protection was extended to their wives, families and dependents. It was impossible not to see that by that section of the 1918 Act, maintained Mr Skerrett. there was a special class \of tenants designated; and the effect of section 18 of that Act was that, so long as tho soldier tenant fulfilled his tenancy obligations, ho was ensured tho continuance of his tenancy, and could not he disturbed in it as could the other classes of tenants not so specifically designated. SHORTAGE OF HOUSES. The other reasons for this extension of tenancy protection, continued Mr Skerrett, were that the war and tho conditions arising from the war had created a great shortage of houses. The ordinary tenant .had some privileges given to him ■♦because of this house shortage, hut his tenancy could he terminated,' and he could be displaced under certain specified conditions. ' Section. 66 of the Act of 1919, proceeded’ counsel, called the Housing Amendment Act, repealed certain sections of tire 1918 Act, and, after using the phrase that those sections were repealed, added tire words, “and the following shall be substituted in lieu thereof.” What was really substituted ‘‘in lieu thereof,” contended Mr Skerrett, did not in any way relate to soldiers and discharged soldiers, hut to ordinary tenants. In this repealing clause, counsel pointed out, the Legislature had used the general expression “the tenant,” but had evidently intended, from the very- nature of the clause, to exclude soldiers,* discharged soldiers and their dependents from the influence of tho amendment. His Honour said ho did not think he could go quite so far as that. The section.had that effect, of course, because section 2 quite evidently did not relate to soldiers. WORDING “VERY CURIOUS.” Mr Skerrett contended that, no matter how general the wording of tho Act, the court could restrain the generality of the word. His Honour agreed that the wording of the repealing clause was certainly “very curious.” Mr Skerrett then proceeded to point to the provisions of the Housing Amendment Act of 1920, sections 20 and 22 of which amended the previous Acts by tho insertion of certain words which again, Mr Skerrett contended, very evidently wero not intended to bear any application to soldier tenants. Section 22, in dealing with the matter of ejectments, he said, in relation to tenants and the proviso that no undue hardship should be inflicted upon them, had again no intention of including in the general term “tenant” the special class of privileged soldier tenants creatI ed by the Act of 1918. Dealing, then, .with the Housing Amendment Act of 1921-1922, Mr Skerrett proceeded to read section 9, tho wording of which was as follows * — SECTION 9, ACT 1921-1922. “(1) An order for the recovery of possession of a dwelling house to which tho War Legislation Amendment Act, 1916, applies, or for the ejectment therefrom of a tenant, may be made only on the following grounds:—(a) That the tenant has (subject to the provisions of part I. of the War Legislation Amendment Act) failed to pay rent at the agreed rate or to perform the other conditions of the tenancy; or (b) that the tenant has failed to take reasonable oare of the premises, or has committed waste; or (c) that the tenant has been guilty of conduct which is a nuisance or an annoyance to adjoining or neighbouring occupiers; or (d) that the premises are reasonably required by tho landlord, for his own occupation as a dwelling house; ox (e) that an agreement for the sale of the premises lias been duly entered into, to be completed by transfer within one month from the date thereof, and that the premises ;u'o reasonably required by the purchaser for his own occupation as a dwelling house; or (f) that the tenant, by subletting the dwelling house, or any part thereof, is making a profit which, having regard to th e rent phid by the tenant is unreasonable. (2) Soction 56 of the principal Act and section 22 of the Housing Amendment Act, 1920, are hereby repeated. (3/ Part I. of the War Legislation Amendment Act, 1916, and the several .amendments thereof, including this section, shall continue in force until December 31st, 1922, and shall then expire unless further continued.” COUNSEL’S PLEA CONTINUES. Mr Skerrett, continuing, maintained that upon tho learned counsel for the respondent devolved the onus of showing that the general wording of the subsequent Acts wap intended to cover not only non-soldier tenants, but also all soldier-tenants; and, if intend ed to cover soldier-tenants, then, maintained Mr Skerrett, a. great unintentional injustice had been done to a special class of tenants specifically intended to be protected. Amongst other authorities quoted by him in support of his contentions, Mr Skerrett referred to tho compara tively recent case of Flannigan » Shaw, where, in giving his decision Lord Justice Banks quoted the decision of Lord Selborne to the effect tkat aj

where there were general words in any Act capable of a reasonable applico tion of meaning, the court was not to consider that the special application of an earlier Act was repealed by that subsequent general wording unless by a specific and intentional reference. Mr Skerrett claimed for his client that the court could give effect to section 9, and that the main object ol subsection 1 was to legislatively define the question of the landlord’s right to eject his tenant should that tenant not pay his rent or observe the conditions of the tenancy. Counsel contended that section .9 should stand with section 13 and subsection 1, without any application of the general wording to limit the provisions specially awarded by the earlier Act. SAVED BY SEVENTEEN DAYS. His Honour inquiring when the provisions of section 9 were intended to have come to an end, counsel for respondent stated that, by the Act ol 1921, the limitation was placed at February 28th, 1922, and, after some little discumion between the court and counsel on both sides, it was elucidated that, on February 11th, 1922, an Act of temporary legislation had further extended the period to December 31st, 1922. His Honour: Just seventeen days before the whole thing would have vanished from the statutes. Mr Skerrett contended that this last legislation, because it was only temporary and had drawn no specific distinctions, was really intended to preserve the privileges and protection al- - extended to the soldier class of tenants. An interesting phase of the problem was bared in the fact that the premises in question in this case, although a hohse and shop, wero considered by the Act to be “constructively a dwel-ling-house,” because the rent was under) the £156 per annum specified ty the Act. THE TEST CASE STATED. Replying to His Honour, Mr Steven son said that, in the lower court, tiio magistrate had decided the plaintiff could have a test case stated under the Act of 1921, the property being required by tho landlord as a “dwelling” under the meaning of the Act. At this point, considerable dismission arose between His Honour and all three counsel as to the actual grounds upon which tho magistrate had decided to state a test case; and Mr Skerrett said it looked very much as though the case should be referred back to the magistrate to get his exact views on the subject. The landlord, continued Mr Skerrett, clearly wanted the premises as a “shop,” thercT" being an empty shop next door which the soldier could get if he cared to do so, retaining the residence portion of- the premises also. It was as a “shop,” and not as a “dwelling-house.” maintained counsel, that the landlord had technically asked for re-possession.

MAGISTRATE REQUESTED TO STATE. Mr Stevenson, being called upon to give his explanation of the matter, agreed that, in stating a case for the consideration of the present court, the magistrate had only acquiesced to the requests of himself as the soldier’s counsel in the lower court. If, said Mr Stevenson, the rights of the returned soldier® were taken away by the newer legislation, the effect would he to deprive the soldiers and their dependents of all benefits conferred under the repatriation schemes. A returned soldier, suggested counsel, might be just nicely getting pn his feet, after a couple of years of bald, uphill battling in a shop business he had worked up, when ui> could come his landlord, who could throw him out by selling the entire premises to .mme person coveting the nice little business, and .the unfortunate soldier would he mined. WHEN IS A SHOP A DWELLING? His Honour, in examining the technical definitions land distinctions of the Acts, asked: “Where a shop by itself is occupied by a soldier, would section 9 of the 1921 Act have any application to it, and would that shoip be a constructive ‘dwelling’?” The matter remained more or less obscure when the court rose at one o’clock for the luncheon

TO CONTINUE THE OLD ACT? His Honour said the question appeared to be whether the new Act was intended to renew and continue the oonditkms established by tho old Act. Mr Skerrett contended that it was incredible that the Legislature really intended to deprive this specialism! class of tenants of its protection, and that when the temporary legislation in the Act of 1921 was passed, nnd there been any such intention, questions would have been asked in Parliament. As it was, there did not appear to be aj single reference to it in “Hansard.” “DISCREET LEGISLATORS.” Has Honour suggested that some legislators might be discreet enough to raise no questions on certain technical matters. It certainly looked, he added, as though, when enacting these later provisions, the Legislature had overlooked or forgotten all about their previous enactments. CONSTRUCTIVE DWELLING HOUSE. When counsel for defendants had been speaking for some time, His Honour interrupted with the remark that he understood counsel claimed an order of ejectment which had been granted by the magistrate on tho ground that seotion 13 was repealed. Now, said” His Honour* counsel was apparently arguing that section 13 was applicable only to a £2 per week dwelling-houso, hut His Honour held that the present case dealt with a dwelling-house and shop. It could not, niaintained His Honour, be held to be a protected dwelling-house because, to protect it, it must ho considered a “constructive dwelling-house.” DWELLING OR SHOP? Counsel said the magistrate had found that the premises were occupied as a shop or place of business, and only partially used as a dwelling. His Honour: la it your contention that tins place is a dwelling-house and not a shop? Counsel: Yes, sir. His Honour: And if it is proved that it was substantially a shop and not a dwelling-house, what would you say then? Counsel: I don’t know. I should have to leave it to Your Honour. Counsel then proceeded to argue that the old law remained in force for the protection of soldiers in regard only to their shops, and not to dwellinghouses. SEOTION 13 NOT REPEALED. When Mr Skerrett, K.C., liad begun an address to tho court, His Honour interrupted him: You stitl follow the magistrate in talking about section 13 having been repealed. Section 13 was not repealed. Mr Skerrett said ho accepted the suggestion that section 13 was incorporated in the new enactment, and that the whole three sections must be

s taken together. In that case, he contended, there was all the more reason to maintain that the Acta in their intention did differentiate between ordinary tenants and -soldier tenants of this special class. flis Honour intimated that he would reserve hie decision.