[rent, holding over - landlord and tenant]

Owen v. Forbes

Supreme Court of Van Diemen's Land

Pedder C.J., 20 December 1831

Source: Tasmanian, 24 December 1831[1]

Sir John Owen, Bart v Forbes

This was an action for rent. The defendant occupies an estate the property of plaintiff. He had a lease which expired in October 1830. A short time previously, he wished to continue tenant, but as a reduced rent. Mr. Nickols, Sir John Owen’s Agent, said, if I cannot find a better tenant, you shall have it. He got a better tenant - gave defendant notice to quit, who chose to hold over, and he so does still. The simple question is, what is the amount of rent for which he is liable.

Chief Justice. - The statute says, if you hold over the Jury must look to the old rent.

Mr. Nickols. - I am agent to Sir John Owen; Mr. Forbes, the defendant, had possession of it as tenant in 1829; I received the rent from him; [Receipt produced up to 1830] I understand Mr. Forbes held the estate under a verbal agreement for a lease for 5 years, at £100 per annum currency; I understand it expired the 30th Sept. 1830; previous thereto, a conversation took place, as to holding for another year, but we disagreed as to terms; he offered £20 a- year; I refused it, but I said if I cannot get a better tenant previous to the expiration of your term, sooner than the estate should remain unoccupied, you shall have it, I let it afterwards to Mr. Stocker, before the expiration of defendant’s term, for £60 per annum; I gave notice to defendant accordingly; I gave it to Mr. Stocker, for him to send up to get possession; I have not seen defendant since.

Cross-examined by the Solicitor General. - This paper (produced) was not the paper I have spoken of; this was written afterwards; this (produced) is the first paper spoken of it is dated the 30th Sept., and could not have reached him until a day or two afterwards; I advertised the farm to let, with possession on the lst October, four times. [Receipt produced to Sept. 29.] If Mr. Forbes was to quit, I was to give him notice previous to the expiration of his term; I now think there are three notices; I think there was one written and sent by messenger, and this was sent upon a complaint from Mr. Stocker, that Forbes would not give possession; if I had not given him notice before the lst Oct., I should have considered him tenant at £20 per annum.

Mr. Stocker. - I contracted with Mr. Nickols to rent the Cove farm; it was about the middle of September, at £60 per year; some days afterwards, I sent a man named Johnson with an order, with a memorandum on the back of it; Mr. Johnson lived at Glenarchy; I sent him up to take possession for me.

Cross-examined. - The paper (produced) is the above order and memorandum’ it is dated 11th Nov. 1830; Mr. Nickols did not come to town for some time after he let me the farm; I never had a communication with Mr. Forbes on the subject except as above; I know of no other orders from Mr. Nickols but these two; Mr. Johnson brought me back a letter from Mr. Forbes to Mr. Nickols, and unsealed; I sealed it and forwarded it. [A copy of it produced; it was to the effect that not having heard from Mr. Nickols previous to the 30th Sept., he considered himself tenant for the ensuing year, at £20 per annum.] £60 a year is fully as much as it is worth.

John Johnson. - I went to Mr. Forbes at the Cove, respecting the farm being let to Mr. Stocker, on the 4th or 5th Oct., I took a letter with me that I received from Mr. Stocker; it was an open note; I never went to the Cove house but once; he refused me possession, and I troubled myself no more about it; I was up once before to look at the place, but I had no authority from any body; Mr. Forbes said to me, I understand you are coming here to live; I said, I am; he said, has Mr. Stocker taken this place for you; I said, I believed he had.

Cross-examined. - I empowered Mr. Stocker to rent the Cove for me, when it was first advertised; I took back a note unsealed to Mr. Stocker to the effect that he had given a very high price for the farm, but did not wish it to be concealed; I never gave Mr. Stocker more than one note from Mr. Forbes

Plaintiff’s case closed.

The Solicitor-General, for the defendant, commented upon the great difficulty in ascertaining date from the witnesses. He went through the whole case and argued that as no notice had been proved to have been given to Forbes previous to the lst October, that his tenancy at 20 per annum was commenced according to the agreement with Mr. Nickols.

Patrick Roebeck. - I am storeman to Mr. Forbes; I remember Mr. Nickols coming to my master’s; it was last August 12 months; I was standing in the yard; he said, I am hard up to-day, would it be convenient to pay your rent; he said, yes, walk in; he went in, and I held his horse; they came out; Mr. Nickols asked Mr. Forbes would he give no more than £20 a year; Mr. Forbes said no; Mr. Nickols said, if you do not hear from me on or before the 26th Sept. you may consider yourself as remaining 12 months at £20; if I get a better offer, I shall require the farm; Mr. Nickols then went off.

Cross-examined. - I first heard from Mr. Forbes that Mr. Stocker had the farm, in October.

Mr. Gellibrand replied shortly.

The Chief Justice summed up, leaving it to the Assessors to decide when the notice to quit was given to the defendant, which point embraced the whole of the action. His Honour laid before them all such parts of the evidence as tended to fix that question; and the Assessors found a Verdict for Defendant.

Notes

[1] Sir John Owen was the brother of Edward Lord, a wealthy and influential Tasmanian settler and for over fifty years was a member of the House of Commons, E.R. Henry,'Edward Lord: The John Macarthur of Van Diemen's Land', Tasmanian Historical Research Association Papers and Proceedings, vol. 20, 1973, p. 100.