Re Galway Concrete Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Keane. J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1983 WJSC-HC 479
• Date: 01 January 1983

1983 WJSC-HC 479

THE HIGH COURT

3311P/1984

In Re GALWAY CONCRETE LTD.

IN THE MATTER OF THE COMPANIES ACT, 1963

-and-

IN THE MATTER OF GALWAY CONCRETE LIMITED (IN LIQUIDATION)

Subject Headings:

CONTRACT: implied term

SALE OF GOODS: contract

1 Judgment delivered the 10th day of December 1982. by Keane. J.

2 Galway Concrete Limited ("the Company") ordered a batching plant from Malachy Quinn (Machinery) Limited ("the Suppliers") in March, 1979. The plant was installed in September, 1979 at a premises at Oranmore, County Galway. It consisted of a complete batching plant with two cement silos, two cement screw conveyors, an automatic control panel, print-out equipment and other ancillary equipment.

3 An oral agreement as to the method of payment for the plant was entered into between the Company and the Suppliers and a written memorandum of that agreement was signed on behalf of both parties in September, 1979. That agreement provided inter alia as follows:-

"General Conditions: The complete plant with all attachments remain our property, Malachy Quinn (Machinery) Limited, until paid for in full.

The plant to be insured fully for all risks and damage. Certificate of Insurance to be sent to us for confirmation annually. The plant to be maintained to our satisfaction with all spares replaced by Galway Concrete Limited, when required. Our personnell ( sic)allowed free access to the site and plant at all times.

Written agreement from Galway Concrete confirming the goods are the property of Malachy Quinn (Machinery) Limited, until paid for in full."

4 It was agreed that the plant should be paid for by five equal bank drafts for £21,.00 each dated the 1st March, 1980 and the 1st March in each succeeding year, with provision for the payment of interest in advance at 8%.

5 The first payment of £21,.00 and the first two interest payments were duly made. A cheque for the second instalment of £21,.00 due on the 1st March, 1981, was presented by the Suppliers to the Company's bank, but payment was stopped by the Company. On the 24th March, 1981, the Supplier's Solicitors wrote to the Company demanding re-possession of the plant, which demand was not complied with. On the 6th April, 1981, by Order of this Court Mr. Laurence Crowley was appointed Official Liquidator of the Company.

6 On the 17th September 1979, Allied Irish Leasing Limited ("the Bank") agreed to give leasing facilities to the Suppliers in respect of the plant. On that date, the Bank appointed the Suppliers as their agent to purchase the equipment and the Suppliers indicated their acceptance of this arrangement by signing the letter of that date. On the 24th October, 1979, the Bank were told by the Suppliers that the plant had been purchased from suppliers in Germany; and on the 2nd November, 1979, the Bank re-imbursed the Suppliers in respect of the purchase by means of a payment of £103,939.00. On the same day, the Bank entered into what was described as a "leasing contract" with the Suppliers under which the Bank "as owner" agreed to let and the Suppliers "as lessee" agreed to take on lease the plant for an initial period of forty-eight months and a further period of four years. The agreement provided for the payment of a sum of £8,704.90 per quarter by the Suppliers during the initial period and a sum of £1,039.39 per year during the remaining period of the leasing.

7 The Liquidator has now applied to this Court for directions as to the rights of the three parties concerned - the Company, the Suppliers and the Bank - to the plant. In an Affidavit sworn by him on the 4th March, 1982, he says:-

"I am informed and believe that the .. plant is affixed to the ground by metal plates which are welded to the stanchions and these metal plates are bolted into concrete. In some instances the plates themselves are covered in concrete. In addition there are two concrete buildings, one of which is used as an office and the other as a store erected around the stanchions of each silo (part of the ... plant) in such a way that these buildings would have to be removed if the ... plant itself were to be removed. The central part of the ... plant, the mixing unit, is itself bolted into a two foot parapet wall and itself could not be removed without the wall being damaged. The property on which the ... plant is situated is occupied by Galway Concrete Limited on a caretaker's agreement from Hygeia Limited which is an associate company and I beg to refer to a copy of the caretaker's agreement upon which marked with the letter "LC4" I have endorsed my name prior to the swearing hereof."

8 It is submitted on behalf of the Liquidator that the plant, upon becoming affixed to the land in the manner just described,...