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Decisions of the Superior Courts of New South Wales, 1788-1899

Belcher v. Dences (1828) NSW Sel Cas (Dowling) 678; [1829] NSWSupC 90

tenancy - set off - distress for rent - quantum meruit

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 29 December 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 264][In an action for use and occupation of a Blacksmith's Shop let together with the use of the tools which last were seized as a distress for rent in arrear due to the superior Landlord during the tenancy   Held that the Tenant could not sett off the diminished value of the premises thus occasioned in an action for use and occupation of the rent of his immediate Landlord.]

December 29 1829

Belcher v Dences

Assumpsit for the use and occupation of a blacksmith Shop and premises Plea the general issue and notice of set off.  At the trial before Forbes CJ. it appeared that the Plaintiff on 13 November 1828 demised the premises in question together with the use of all the blacksmiths tools therein "to the Defendant at £1/2s per week after the Defendant had been in possession a short time a distress for rent due by the Plaintiff to his landlord was put into the premises and most of the Blacksmith's tools were taken and sold.  The Defendant continued in possession for half a year during which time he was deprived of the use of the Blacksmith's Tools which had been distrained upon, and their places were not supplied with others.  The defendant at the trial under the notice of set-off claimed to reduce the Plaintiffs demand by the value of the use of the tools of which he had thus deprived [p.165] of.  It was also objected that the Plaintiff ought to be nonsuited for a variance between the Contract and the evidence the Plaintiff claimed use of and occupation for the premises together with the use of Blacksmith's premises together with the use of Blacksmith's tools.  The Tools were part of the decisive.  Now as the Defendant had no use of these tools the consideration of part of the argument and consequently the whole.  The Plaintiff however had a verdict for £11.13. giving the Defendant credit for the diminution value of the premises occasioned by the sale of the Blacksmiths, subject to the opinion of the Court whether this could be made matter of set-off and if not then the verdict was to be entered for £20.6.3.

Norton now moved for a nonsuit on the ground above mentioned, and contended that all events the Defendant was entitled to set off the diminished value f the premises by the sale of the Blacksmiths Tools.

Rowe contra was stopped by the Court

Per Curiam  We are of opinion that this was a matter which could not be set off under the [p. 266] circumstances of this case it was unliquidated damage which could not be set off.  If the defendant has sustained damage, his remedy is in another action.  The Plaintiff would not have been nonsuited for the supposed variance, because there was in fact an occupation of something for which the Plaintiff was entitled at least to recover a quantum Meruit.

Dowling J.  This action being founded on the 11 G 2. C. 19. s. 14 & the Plaintiff having proved a demise he could not have been nonsuited although the Defendant did not occupy all that was demised to him.  The finding of the Jury concludes the question of occupation, and I think that the diminished value of the premises could not be set off this being not a matter within the intent and meaning of the statutes of set off.

Verdict to be entered for £20.6.3 1/2.

Published by the Division of Law, Macquarie University