CLAIMS FOR POSSESSION

Otago Daily Times, Issue 18510, 22 March 1922, Page 8

CLAIMS FOR POSSESSION

PROTECTION FOR SOLDIERS. MAGISTR AITS’ JUDGMENTS CONFLICT. (Pn Uhitrd Pbf.sr Asbooiatiow.) NKInSON, March 21. A judgment, of considerable importance to returned soldiers was given by Mr ,T. S. Evans, S.M., at, the Magistrate’s Court today which conflicts with that recently given by Mr F.'K, Hunt, S.M., of Wellington, who held that the protection formerly given returned soldiers was taken away under the amending Act. Mr Evans takes a different view. The case before the court was that of Percival (Mr Fell) v. Gay (Mr W. Charley), a claim for possession and rent (£ls). Evidence was given to show that defendant, who is a returned soldier, had not paid any rent since December. The magistrate held that, there was no excuse for non-payment of rent, and made an order for possession, in default a warrant to issue. In the course of his judgment the magistrate said: “The question is. Does section 9 of the Housing Act, 1921-1922, by implication repeal section 13 of the War Legislation Act, 1918, in respect to the protection granted by this section to soldiers and their dependants. It does not expressly do so, and if it was intended that it should, then section 9 is clumsy legislation, and very badly drawn. Sub-section 1 stated ti.o grounds, and the only grounds, upon which * an order for possesion may be made, and appears on its face to apply to every class of tenant without exception. Section 13 (1) of 1918 contains a direct prohibition against making orders of possession against, soldiers and (heir dependents, except in certain circumstances. Sub-section 2 states negatively the grounds upon which an order may be made in other cases. Election 9 (1) states these same grounds affirmatively, and for all practical purposes this is the only difference between sections 13 (2) and 9 (1). These two sub-sections are therefore not inconsistent, and may stand together, though section 15 (2) has now become practically superfluous. Section 9 (?) repeals the “undue hardship” clause M former Acts, and if it were intended to repeal preference to soldiers it should have been done expressly, and - not loft it to different constructions that might, bo pit on a badly drawn section. Implied repeals are not favoured in construing an Act, and in section 9 the implied repeal of section 13 is negatived because sub-section 3 of section 9 expressly declares that all the provisions of other enactments dealing with this question, together with section 9 itself, shall continue in force until December 51. 1922. This includes section 15 of 1918, and it is therefore impossible to construe section 9 as impliedly repealing any of the previous enactments on the subject, when its final clause declares that they shall remain in force. The position, then, is that section ’3 is still in force by virtue of section 9 (3). Now. section 9 (1) is not inconsistent with 13 (2), but it is inconsistent with 13 (1), and this section is a direct prohibition against making orders of possession against soldiers and their dependents, except as provided in section 9. Therefore section 13 (1) must by virtue of sectioti 9 (3) be construed as an exception to section 9 (1). In my opinion, therefore, section 9 (1) applies to all cases except where some other unrepealed section expressly declares that an order shall not be made, and section 13 (1) is such a section. I hold, therefore, that the protection afforded to soldiers by section 13 (1) is not affected by section 9 (1) of the Housing Act, 1921-1922.”