Re Irish Aero Club;Gillic v Minister for Industry and Commerce and Minister for Defence

• Jurisdiction: Ireland
• Judgment Date: 21 November 1938
• Date: 21 November 1938
• Court: Court of Appeal (Ireland)

In the Irish Aero Club; Gillic v. Minister for Industry and Commerce and Minister for Defence

In the Matter of the COMPANIES ACTS, 1908-1924;and in the Matter of THE IRISH AERO CLUB, LTD.; THOMAS P. GILLIC

Plaintiff

and

THE MINISTER FOR INDUSTRY AND COMMERCEand THE MINISTER FOR DEFENCE

Defendants.

Company - Winding up - Voluntary liquidation - Insolvency - Claim by Minister for Industry and Commerce for aerodrome licence fees - Claim by Minister for Defence for repairs to aeroplanes - Whether "money due or payable to or for the benefit of the Central Fund" - Priority of payment - Constitution of the Irish Free State (Saorstáit Eireann), Act, 1922 (No. 1of 1922), Arts. 11 and 61 - Adaptation of Enactments Act, 1922 (No. 2of 1922), s. 1 - Finance Act, 1924 (No. 27 of 1924), s. 38, sub-ss. 1 and 2,s. 44, sub-s. 3 - Air Navigation (General) Regulations, 1930 (Stat. R. & O.,1930, No. 26), Arts. 64 (1) and 87, Schedule II (c) - Constitution (Consequential Provisions) Act, 1937 (No. 40 of 1937), ss. 6 and 7.

Sect. 38, sub-s. 2, of the Finance Act, 1924, enacts;—

"Moneys due or payable to or for the benefit of the Central Fund shall have and be deemed always to have had attached to them all such rights, privileges, and priorities as have heretofore attached to debts due to the Crown."

Held that this sub-section only applied to taxes and duties under the care of the Revenue Commissioners and that the priority given was not intended to extend either to a claim for aerodrome licence fees due to the Minister for Industry and Commerce or to a claim by the Minister for Defence for repairs to, and daily inspection of, aeroplanes.

Summary Summons.

The plaintiff, Thomas P. Gillic, who was the Liquidator of the Irish Aero Club, Limited, which company had entered into voluntary liquidation, brought a summary summons, claiming an order pursuant to s. 193 of the Companies (Consolidation) Act, 1908, for the determination of the following questions:—

"1. Whether the claim of the Minister for Industry and Commerce in the liquidation for the sum of £35 3s. 0d. was payable in priority to the claims of the general creditors of the said company?

2. Whether the claim of the Minister for Defence in the above liquidation for the sum of £259 10s. 5d. in respect of transport, erecting of notice boards, garaging and repair, of aircraft, is a valid claim which should be allowed?

3. Whether the said claim of the Minister for Defence, if allowed, is payable in priority to the claims of the general creditors of the said company?"

The claim of the Minister for Industry and Commerce for £35 3s. 0d. was for aerodrome licence fees. The claim of the Minister for Defence was for the actual or prime cost to his Department of time and materials in connection with repairs to the said Irish Aero Club's aircraft together with an addition of 21 per cent. in respect of overhead charges. The addition of 21 per cent. represented the expenses of supervision, maintenane of stores and heat, light and maintenance of workshops, and was based on the actual proportion which such expenses bore to the actual cost of materials and time in connection with the repair and overhaul of military aircraft. The arrangement between the Irish Aero Club and the Minister for Defence was made in 1934 when the Club requested the Department to execute repairs which they could not themselves execute and the Minister for Defence agree to do so upon the Club undertaking to defray the cost thereof.

The charges in respect of landing and accommodation were prescribed in 1931 by the Minister for Industry and Commerce with the consent of the Minister for Finance.

The Liquidator stated in an affidavit that, by resolution passed on the 26th day of November, 1937, the Irish Aero Club, Limited, resolved to enter into voluntary liquidation and he was appointed Liquidator. The total assets of the club amounted to approximately £425 12s. 1d. of which sum £312 2s. 3d. had been realised. The total claims received amounted to £930 1s. 3d.

The remaining material facts appear sufficiently from the judgment of Gavan Duffy J.

Gavan Duffy J.: —

This case has raised some interesting and difficult questions at law, but I shall confine myself to deciding those matters which...