O'Driscoll v Bandon Town Commissioners

• Jurisdiction: Ireland
• Judgment Date: 15 February 1907
• Date: 15 February 1907
• Court: Court of Appeal (Ireland)

O'Driscoll

and

Bandon Town Commissioners (1).

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1907.

Practice — Equitable execution — Application by judgment creditor to be appointed receiver over debts due to judgment debtors — Town Commissioners — Debenture-holders.

Held, affirming the decision of the King's Bench Division (Andrews and Wright, JJ.), that as the money in the receiver's hands would be liable to satisfy claims paramount to the plaintiff's debt, the application should be refused.

Appeal by the plaintiff from an order of the King's Bench Division, dated the 6th February, 1907, by which an order obtained by the plaintiff ex parte from Johnson, J., dated the 13th December, 1906, appointing the plaintiff receiver by way of equitable execution over certain debts due to the defendants as managers of the gasworks at Bandon, was discharged.

On the 3rd March, 1902, the plaintiff recovered judgment against the defendants for £170 9s. 7d. and £10 14s. 3d. for costs, making together £181 3s. 10d. On the 17th September, 1902, a sum of £10 was paid to the plaintiff, but no further payment was made, and there was due to the plaintiff for principal, interest, and costs of registering the judgment as a mortgage,£209 10s. l1d.

The defendants were originally constituted, under the Lighting of Towns (Ireland) Act, 9 Geo. 4, c. 82, for cleansing, lighting, and watching the town of Bandon. In 1836 fifty persons subscribed a sum of £50 each for the purpose of erecting gasworks to light the town of Bandon. They leased a plot of ground at £5 a year, and with the £2500 so subscribed they erected the gasworks. By indenture, dated the 1st November, 1837, the Commissioners mortgaged the undertaking, and income, and the rates, to three trustees, Thomas Vaugh, William Pope, and Robert Belcher, to secure payment of debentures with interest thereon at £6 per cent, per annum. The three trustees were dead, and no new trustees had been appointed to replace them. There was due on foot of the mortgage a sum of £1900, the balance having been paid off from time to time by the Commissioners.

By the Local Government Act, 1898, section 41, the provisions of the Towns Improvement (Ireland) Act, 1854, were applied to Bandon (amongst other towns), and by the said Local Government (Ireland) Act the said Lighting of Towns (Ireland) Act was repealed. By section 60 of the Towns Improvement (Ireland) Act, 1854, the Commissioners had power to strike a rate each year of 1s. in the £, and no more. The Acts relating to water, and the Public Health Acts, were administered by the Rural District Council. The Government valuation of the municipal area of the town was £7834, and the rates produced £339 14s. 8d. The rates had always been insufficient to satisfy the public purposes for which they were levied, and the plaintiff stated that the Commissioners were in each year indebted to the gasworks in a sum of about £60.

The Commissioners supplied gas to most of the shopkeepers, merchants, and business premises, and private residences in the town, and kept the accounts of the gasworks separate from the town accounts. There were considerable sums of money due to the defendants for gas supplied down to the 31st December, and there were no other means of satisfying the plaintiff's debt except by appointing a receiver, as they had no seizable property.

The plaintiff stated that there was about £500 due to the defendants for the quarter's gas, ending the 31st December, 1906. The particulars of these sums had been ascertained by the defendants from the several meters, and were in possession of the defendants, and the index of each meter had been delivered to each customer, so that the moneys were actually payable. After paying the interest on the debentures, the defendants would have a substantial balance.

The Town Clerk of the Commissioners made an affidavit in which he stated that the money authorised to be collected was the only money available to satisfy the interest of the debenture-holders, and for the working of the said gasworks, and if taken by the plaintiff must result in closing the gasworks. There was one year's interest due on the debentures down to the 1st November, 1906, amounting to the sum of £140.

On the 13th December, 1906, Johnson, J., made an order appointing the plaintiff receiver, by way of equitable execution, over so much of the amounts due, or to become due, to the defendants as would be sufficient to satisfy the plaintiff's judgment, the said receiver undertaking to account to a Master of the Division if and when required so to do for any sums he might receive under this order. On the 6th February, 1907, the Divisional Court (Andrews and Wright, JJ.) discharged the order, and the plaintiff appealed.

A. M. Sullivan, for the appellant:—

Unless the order is granted, there are no means by which the plaintiff can be paid, and the defendants can go on trading without paying any of the judgment creditors. The only difficulty in the plaintiff's way is the debenture deed, and that is a trust deed, which—if...