Levin v Wellington Cooperative Book Society

• Jurisdiction: New Zealand
• Judgment Date: 06 September 1946
• Date: 06 September 1946
• Docket Number: Case No. 133
• Court: Supreme Court

New Zealand, Supreme Court.

(Fair, J.)

Case No. 133

Mrs. Levin, Limited

and

Wellington Co-operative Book Society.

Conclusiveness of Statements of the Executive — Interpretation of —“Cessation of Active Hostilities”.

War — Termination of — Cessation of “Active” Hostilities — Certificate of Minister — Evidence — Landlord and Tenant — Validation of Wartime Leases Emergency Regulations, 1945.

The Facts—This was an action for possession of a shop and premises which had been leased by the plaintiff Company to the defendant Society for a term which was to terminate either on:

“4 (a) The expiration of three calendar months after the date on which the Dominion of New Zealand shall have ceased active hostilities with all nations or countries now (i.e., July 15, 1943) engaged in the war at present being waged by the British Commonwealth of Nations with enemy countries, or

“(b) the expiration of five years from July 15, 1943, whichever date shall be the earlier.”

The plaintiff Company claimed that the lease expired on November 15, 1945, and that, after that date, the defendant Society had occupied the shop and premises as a tenant holding under a tenancy terminable at the will of either party by a calendar month's notice in writing, in accordance with the Property Law Act, 1908, s. 16. Such notice having been given and having expired, the plaintiff asked for an order for possession. The defendant Society alleged that the term of the lease attempted to be defined in clause 4 (a) was void for uncertainty, or alternatively that the lease came within the provisions of the Validation of Wartime Leases Emergency Regulations, 1945, which applied to all leases terminable upon the cessation of hostilities. These regulations caused such leases to enure until a date to be fixed by Order-in-Council as the date upon which hostilities ceased. No such Order-in-Council had yet been made.

Held: “Active hostilities”, as used in the lease, meant “actual belligerent operations by force of arms against an organized government representing, at least, a considerable section of the people of an enemy country”. Such hostilities had ceased more than three months before the date of the notice to quit, which was, therefore, a valid termination of the lease. The Court said:

“At the conclusion of the hearing of this action, I held, for reasons which I then stated in detail, that the lease was not void for uncertainty, as it was for a fixed term, determinable automatically three months after...