Kelly v Scales

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1994
• Neutral Citation: 1994 WJSC-HC 1169
• Date: 01 January 1994
• Court: High Court
• Docket Number: [1993 No. 659 P.],no. 659 p/1993

1994 WJSC-HC 1169

THE HIGH COURT

no. 659 p/1993

KELLY v. SCALES

IN THE MATTER OF ECCLES HALL LIMITED (IN LIQUIDATION)

AND IN THE MATTER OF THE COMPANIES ACTS 1963 - 1990

BETWEEN

FRANCIS N.A. KELLY

APPLICANT

AND

LINDA SCALES PRACTISING UNDER THE STYLE AND TITLE OF SCALESAND COMPANY

RESPONDENT

Citations:

COMPANIES ACT 1963 S244A

RAISON, IN RE (1981) 63 LT 709

HAMILTON V HAMILTON 1982 IR 466

Synopsis:

WINDING UP

Documents

Possession - Lien - Claim - Prohibition - Statute - Effect - Whether prohibition retrospective - Companies Act, 1963, s. 244A - Companies Act, 1990, s. 125 - (1993/659 P - Barron J. - 22/11/93) - [1994] 1 I.R. 42

|Kelly v. Scales|

LIEN

Possession

Documents - Property - Company - Liquidation - Liquidator - Demand for return of documents - Possessor claiming lien pending payment for work done for company - Statutory prohibition of such lien - Work done before enactment of statute - Whether statute had retrospective effect - (1993/659 P - Barron J. - 22/11/93)

|Kelly v. Scales|

STATUTORY INTERPRETATION

Enactment

Application - Retrospection - Lien - Enforcement - Prohibition - Presumption against retrospective effect of enactment - (1993/659 P - Barron J. - 22/11/93) - [1994] 1 I.R. 42

|Kelly v. Scales|

1 Judgment of Mr. Justice Barrondelivered the22nd day of November 1993.

2 This case raises two net issues. First, whether section 244A of the Companies Act 1963 is retrospective; and, secondly, if it is whether it applies where a secured creditor is seeking to raise its security whether or not there will be a balance available to the Liquidator.

3 The Liquidator makes two submissions:

4 (1) that the right to the lien arises only when it is asserted;and

5 (2) that since the proviso to the section could have included liens, there is an implication that the Act was intended to be retrospective in relation to liens.

6 In relation to the retrospective operation of statutes, two types of situation exist. The first is the enforcement of the terms of the Statute to circumstances inexistence of the date of the Statute. To do so is to give the Act retrospective effect. The second is the enforcement of its terms in relation to circumstances existing subsequent to its passing but having regard to events which occurred before its passing. To do so does not give the Act retrospective effect since the right being enforced is one given by the Act.

7 I can see no merit in suggesting that to deny the validity of the...