View report page

120
Mr. Milne did not satisfy the order made against him and the Borough
Council therefore ask for a declaration that they are entitled to a charge
on the premises and that that charge may be enforced by sale for the
purpose of recouping themselves the expenses to which they have been put.
When the case first came before the Court Mr. Milne, who 1 think may be
described as the principal defendant, did not appear and was not represented—and
objection was taken by Mr. St. John Field who appeared for
the Freeholders to the mode in which it was proposed to prove service of
the Notices required by S. 28 on the owner and he questioned whether if
properly served service on Mr. Milne satisfied the requirements of the Act.
I thought it was desirable to get Mr. Milne personally before the Court
and adjourn the case for that purpose. On the second occasion Mr. Milne
appeared and gave evidence. -
I am quite satisfied after heariing it that he was duly served with the
requisite Notices.
Then there was the question as to whether he was the "owner" and
whether service on him complied with the provision of S. 28. By that
Section the only person to be served is the owner, and then by Sub
Section 5 the term "owner" is to have the same meaning as in the Public
Health Act 1875 and S. 4 of that Act defines "owner" as the person for
the time being receiving the rack rent of the premises in connection with
which the word is used whether on his own account or as agent or trustee
for any other person or who would so receive the same if such premises
were let at a rack rent and "rack rent" is defined as rent which is not
less than two thirds of the full net annual value of the property under which
the rent arises and the full net annual value is the same as the rateable
value.
The premises in question which appear to have been in very bad state
of repair at the material time were let on a 99 years lease, from June 24th
1863 there being in 1920 forty-five years to run.
Mr. Milne took over the lease just before Christmas 1919. He said he
took it over from a Mr. Stenning who was acting for the Westbury Property
Company Ltd. who were the Mortgagees—that he paid nothing for the
lease but was given a sum of over £60 for the purpose of doing repairs to
the premises. Mr. Milne was registered as owner of the lease on
December 22nd 1919.
The house was let to a Mr. Blake at 10s. a week and Mr. Milne was
receiving the rent at the material time i.e., when the order in the S.W. Police
Court was made against him. The rateable value of the premises was £14
per annum—the rent paid to Mr. Milne by Mr. Blake was at the rate of
£26 per annum—and therefore was a rack rent, hence Mr. Milne is the person
who comes within the definition of "owner" under the Act and is the person
against whom proceedings were properly taken.
I think it is clear that S. 28 does not require that any other persons
having an interest in the premises other than the owner are to be served
with Notices under the Housing Town Planning Act. Therefore it appears
that the Borough Council have duly complied with all the requirements of
S. 28. Mr. Milne having made default in payment the Borough Council
have come to this Court to enforce the Judgment obtained in the S.W. Police
Court by claiming a declaration that there is a charge on the premises for
the sum which Mr. Milne has failed to pay, and that an Order for Sale
should be made for the purpose of realising the necessary amount.
The Sub-section proceeds—“until recovery of such expenses and interest
the same shall be a charge on the premises.” The language of the Section
is not very clearly expressed but the expression “recovery of such expenses
and interest” must mean the payment of such expenses and interest and if
the owner makes default in such payment then the expenses and interest