LEAVE TO DEFEND.

Otago Witness, Issue 2947, 7 September 1910, Page 40

LEAVE TO DEFEND.

j WARNING TO DEFENDANTS. NEW LEGAL PROVISION. I Argument was heard in the Magistrate's Court on the 23rd on an important question rising out of the coming into force this ! year of a. provision of "The Magistrate's Court Amendment Act, 1909." This clause provides that a person intending to defend a case shall, within five days of service of a summons, file in the Magistrate's Court .notice of such intention. Failing that, defendant, if still wishing to prevent the case from being given against him by default, must give notice of his intention to apply for leave to defend the case ''on special grounds." and the magistrate may, if satisfied of the validity of the application and the reasons advanced, grant such application on terms as he may think fit. In the ca=e heard on the 23dr, before Mill. Y. Widdowson, S.M.. defendant had received the summons, but had net taken the necessary steps at the time. The sum involved was a large one-,- bein? £lB3 15s. for rent, alleged to be due. The request for leave to defend was based on these reasons —(1) That the defendant had oro.-xl grounds for defence, and (2) that at first she had not had the means to inetirut ..• a defence. The ease was one in which Norman Harper Bell, tea merchant (Messr? Adams Bros.), proceeded against Isabella M'Keehnie (Messr-. Moore. Moor?, and Nichol) on tho following statement of claim: —-"Plaintiff claims from defendant the sum of £lB3 15s For rout of oortain premises in . South Princes street. Dune.lin, known as the Federal Hotel, let by the plaintiff to '• defendant at a weekly rental of £5 E<s. of which 35 weeks —to wit. from November I 19, 1909. to July 22. 1910, is still due and unpaid." j Mr Ramsay, instructed by Adams Bios.. appeared, and raised the question of giving leave to defend. He said the reasons ;ulv.'tnoed on the special grounds for defence . were not sufficient to justify have being . given to defend. The notice did not state j what were the grounds of defence, Mr Allan (instructed by Messrs Moore, , Mcore, and Nichol) appeared on defen--1 dant's behalf, and said that his learned friend was misinterpreting the clause. The notice of intention to apply for leave to defend did not require to state the grounds of defence —it was only required to give the reasons for applying for the leave sought. After some legal argument the Mabi:>trate said he was not satisfied that the application should be granted as a matter of course —"special grounds" had to be alleged. In tins application ho was not at all satisfied that it was b-*;ia fid?. The request was 0:1 the ground (1) that, she had good grounds of defence, and (2) that, she had no mean.-, of defending the action . )>efore. Defendant said in her evidence ! that she went to Mr Moore a day or two after receiving the summons, and yrt also F«.id that it was not till that morning that she was advised that she had good grounds I fn.r defence. That was not consistent. 1 She seemed to him to 1>? an intelligent j woman, and. further, he was not satisfied with the statement that she hud not suffioient means to defend the case till now. It seemed there was sornathing else in the matter for the purpose of delay. Ho could j not think it was a bona fide action. The , proper course would he a cross-action. , The application would he refused. If this meant an action in another form he could not help it. J Judgment was aceordinsr.lv entered fbv ! default) for plaintiff for "£lB3 15s. with i court costs (£2 10«). solicitors' fees (£5 12s ! and £1 Is) spec-tally allowed for opposing , leave to defend. j While estimating the costs, the Magis- , trate remarked: '"An application for a stav of proceeding's might be granted." j After a moment's consultation, Mr Allan . returned: •' I think it is likely that defendant will file, sir."