Dairy Disposal Company, Ltd v Lixnaw Co-operative Creamery, Ltd

JurisdictionIreland
CourtSupreme Court
Judgment Date18 Dec 1937

Supreme Court.

Dairy Disposal Co., Ltd. v. Lixnaw Co-operative Creamery, Ltd.
DAIRY DISPOSAL COMPANY LIMITED
Plaintiffs
and
LIXNAW CO-OPERATIVE CREAMERY LIMITED Defendants

Creamery Act, 1928 - Certificate of liability - Conclusive evidence of matter certified - Judicial or ministerial character - Certificate based on wrong principles appearing on face - Validity - Creamery Act, 1928 (No. 26 of1928), sects. 2, 4, 5 - Agriculture Act, 1931 (No. 8 of 1931), sect. 4.

Trial of Action.

On the 5th July, 1935, the Dairy Disposal Company, Limited, issued a summary summons against the Lixnaw Co-Operative Creamery Limited, the plaintiffs' claim, as set out in the indorsement thereon, being as follows:—

"The plaintiffs' claim is £1,030 0s. 0d. for principal, and£296 18s. 4d. for interest to the 1st day of July, 1935, due by the defendants to the plaintiffs under and by virtue of sections 2 and 4 of the Creamery Act, 1928 (1), pursuant

to three certificates of liability (1) issued by the Minister for Agriculture, bearing date the 30th day of December, 1933, notice of the issue of each of the said certificates of liability, together with a copy thereof was duly served on the defendants on or about the 30th day of December, 1933, in accordance with sect. 3, sub-sect. 1, of the said Act, but the defendants have failed and neglected to pay the first instalment of principal which became payable on the 1st day of November, 1934, or to make any payment in respect of interest, and by reason thereof the defendants, on the expiration of thirty days after the 1st day of November, 1934, became and still remain liable for the whole of the said principal sum of £1,030 0s. 0d. with interest.

"Particulars.

£s.d.

"1934

"December 2nd

Principal sums certified to be payable by the defendants, the whole of which became due on this date

24 0 0

959 0 0

47 0 0

"1935

"July 1st

Interest to this date at 51/2% on:—

£24 from February, 1930

7 5 2

£959 from 1st April, 1930

276 18 2

£47 from 4th August, 1930

12 15 0

----------

"Total amount due

£1,326 18 4

"The plaintiffs also claim further interest on the said principal sum of £1,030 from the 1st day of July, 1935, until payment or judgment."

The summary summons came on for hearing on the 2nd December, 1935, when, by consent, it was ordered that the action stand adjourned for plenary hearing before a Judge without a jury, the defendants to be at liberty to deliver and file a defence within ten days from the date thereof.

On the 12th day of December, 1935, the defendants delivered their defence, which was as follows:—

"1. No certificate of liability within the meaning of the Creamery Act, 1928, was issued by the Minister for Agriculture.

2. The certificates of liability mentioned in the indorsement of claim in the summary summons in this action are not, and no one of said certificates is a certificate of liability within the meaning of the Creamery Act, 1928.

3. Notice of the issue of the said certificates with copies of same was not given to the defendants forthwith in compliance with section 4, sub-section 1, of the Creamery Act, 1928.

4. The said certificates of liability were all made without jurisdiction, and in excess of jurisdiction and are wholly void.

5. The said certificates of liability were not made with reference to a supply of milk obtained by the defendants (in the said Act referred to as a new milk supply) from any named or ascertained person.

6. The transfer day mentioned in said certificates was more than six months prior to the dates on which the new milk supplies, within the meaning of the said Act, were first received by the defendants.

7. The principal sums in the said certificates mentioned were not calculated on every gallon of milk in the largest quantity of milk received by the defendants on any ascertained day in any appointed year in respect of any new milk supply.

8. The amount in respect of which each of said certificates purports to certify the defendants' liability is not calculated in the manner and upon the principles prescribed by the Creamery Act, 1928.

9. The said amount certified to be due in each of said certificates was calculated by the Minister on the aggregate amount of milk supplied by an unascertained number of persons without regard to the date of the first receipt by the defendants of a supply of milk from each of said persons or the day on which each of such persons supplied the largest quantity of milk to the defendants, in any appointed year.

9a. The said certificates do not certify or purport to certify that the defendants received any quantity of milk or part of any new milk supply on the 14th day of June, 1929.

10. The defects and want of jurisdiction mentioned in paragraphs 5 to 9 hereof inclusive appear on the face of said certificates."

The plaintiffs, in their reply, delivered on the 16th day of January, 1936, joined issue with the defendants on their defence, and further stated that they would rely on the provisions of the Creamery Act, 1928, and in particular on sub-sect. 3 of sect. 2 of the said Act, and would submit that the defence disclosed no answer to the plaintiffs' claim.

The certificate of liability under the seal of the Minister for Agriculture, dated the 30th day of December, 1933, in respect of the Crotta Creamery, with the notice attached, is as follows (the two other certificates and notices, in respect of the Kilflynn and Ballymaquin Creameries, were similar):—

[Certificate.]

"Saorstat Eireann

Creamery Act, 1928.

I, the Minister for Agriculture, do hereby in pursuance of the powers in that behalf vested in me by section 2 of the Creamery Act, 1928, and of all or any other power me thereunto enabling, certify as follows:—

1. That the Lixnaw Co-Operative Creamery Ltd. of Lixnaw (hereinafter referred to as 'the Society') being a person engaged in the manufacture of milk products or in the sale of milk has obtained a supply of milk (hereinafter referred to as the new milk supply) from persons who supplied milk to the Creamery known as Crotta Creamery in the County of Kerry after the 22nd day of February, 1927, which said Creamery has been acquired with moneys provided by the Oireachtas and accordingly it is hereby certified that the said Society is liable to pay in accordance with the provisions of the Creamery Act, 1928, to the Dairy Disposal Company Limited, having its registered office at 42/3 Stephen's Green, Dublin, the principal sum of £959, together with interest at the rate and from the date hereinafter mentioned.

2. That the year in which the selection is made pursuant to section 2, sub-section 2 (a), of the said Act is the year 1929.

3. That the day in the year so appointed on which the said Creamery received the largest quantity of milk (hereinafter referred to as 'the peak day quantity') on foot of the said new milk supply was the 14th day of June, 1929.

4. That the day (hereinafter referred to as 'the transfer day') when such new supply was transferred from the said Creamery to the said Society within the meaning of section 2, sub-section 2 (c), of the said Act was the 1st day of April, 1930.

5. That the principal sum payable by the said Society to the said Company calculated at the rate of £1 for every complete gallon of milk in the peak day quantity is £959.

6. That the interest payable by the said Society to the said Company upon the said principal sum shall be interest at the rate of 51/2% per annum from the transfer day.

Given under the seal of the Minister for Agriculture this the 30th December, 1933.

(L.S.)

"Seamus O'Rian."

[Notice.]

"To the Lixnaw Co-Operative Creamery Ltd. of Lixnaw, Co. Kerry.

"Gentlemen,

"Take notice that a Certificate of Liability under the seal of the Minister for Agriculture, dated the 30th day of December, 1933, and duly made pursuant to section 2 of the Creamery Act, 1928, has been issued by the said Minister to the Dairy Disposal Company, Limited, a copy of which Certificate is annexed hereto.

"And take further notice that your Society is now liable to pay to the Dairy Disposal Company Limited, having its registered office at 42/43 Stephen's Green, Dublin, the sum and interest as stated in such Certificate in the manner following, that is to say, to pay the said principal sum by eight equal annual instalments of which the first instalment shall be payable on the first day of November next, together with interest on the said principal sum at the rate of 51/2%per annum from the transfer day stated in the said Certificate to the date of payment, and the subsequent instalments shall be payable on the 1st day of November in each of the succeeding seven years together with interest at the rate aforesaid from the payment of the previous instalment on the amount of the principal sum for the time being outstanding.

"And take further notice that (a) if any such instalment of the said principal sum or any interest thereon remains unpaid for 30 days after the same has become due, or (b)that if your Society ceases to carry on its business, or (c) if an order is made or a special or extraordinary resolution is passed for the winding up of your Society or (d) if your Society fails to perform or comply with any of the provisions in section 5 of the Creamery Act, 1928, on its part to be performed or complied with, that then the whole of the said principal sum then unpaid shall become immediately payable with interest thereon at the rate aforesaid, and all securities for the said principal sum shall become immediately enforceable.

"Your attention is particularly drawn to the provisions of section 5 of the Creamery Act, 1928, a copy of which section is enclosed herewith, and you are hereby required forthwith to inform me of the steps which your society proposes to take to comply with the requirements of that section.

"Dated this 30th day of...

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