O'Sullivan, McMahon Lyons

• Jurisdiction: Ireland
• Judgment Date: 21 October 1937
• Docket Number: (1934. No. 565 P.)
• Date: 21 October 1937
• Court: Supreme Court

Supreme Court.

(1934. No. 565 P.)

O'Neill v. McCoy and Lyons.

EDWARD O'NEILL

Plaintiff

and

WILLIAM McCOY and FREDERICK J. LYONS

Defendants.

Local Government - Rates on small dwelling - Notice to be served by rate collector on owner of small dwelling who is not benefically entitled - Notice restraining owner from paying rent to beneficiaries until rates discharged - Form of notice - Form prescribed by Public Bodies Order, 1929 - Form served on owner not following form prescribed - Validity of notice - Definition of "owner" - Local Government (Rates on Small Dwellings) Act, 1928 (No. 4 of 1928), s. 4, sub-ss. 3 and 7, s. 5, sub-s. 2 (a) - Public Bodies Order, 1925 (Stat. R. & Or. 1925, No. 46), Art. 3 - Public Bodies Order, 1929 (Stat. R. & Or., 1929, No. 43), Arts. 1 and 10.

Trial of action.

The facts as set out in the amended statement of claim were as follows:—The plaintiff was the surviving executor and trustee of the will of John O'Neill, who died on the 16th August, 1919, and probate of whose will was granted on the 18th October, 1919. The defendant, Frederick J. Lyons, was a rate collector of the Cork Corporation. The plaintiff, as trustee, took over the management and control of the trust property subsequent to the death of Elizabeth O'Neill, who was the tenant for life, and who died on the 3rd of December, 1925. The trust property, which consisted of certain premises in Cork, mainly workmen's dwellings, was heavily incumbered when the plaintiff took over the management. In 1932 the Cork Corporation instituted proceedings against the plaintiff for the recovery of the rates alleged to be due by the plaintiff in respect of the premises. The said action was dismissed with costs on the 27th November, 1932.

The plaintiff resided at Dalkey, County Dublin, and the management of the property had always been entrusted to an agent. On the 1st of January, 1934, the plaintiff appointed William McCoy agent to look after the property and collect the rents and make lettings. On the 20th of June, 1934, the plaintiff entered into an agreement for the sale of certain premises, portion of the trust property, and under the contract for sale the purchaser was entitled to the rents and profits and was liable to pay the rates and outgoings from the 15th day of June, 1934. On the closing of the sale £16 13s. 0d. was paid by the purchaser to the Cork Corporation for rates up to the 31st day of March, 1934.

Certain other premises comprised in the trust property were compulsorily acquired by the Cork Corporation under the Cork Borough Housing Order, 1933, and the Corporation entered into possession of these premises in August, 1934.

The appointment of William McCoy was terminated on the 26th of October, 1934. At the date of the termination of his agency William McCoy had in hands £76 14s. 3d., representing moneys collected by him from the tenants, and which moneys were payable to the plaintiff, but the said William McCoy refused to pay such moneys to the plaintiff in consequence of notices served on him by the defendant, Frederick J. Lyons, which notices purported to have been served under the provisions of s. 5, sub-s. 2 (a), of the Local Government (Rates on Small Dwellings) Act, 1928 (1). By the said notices the said Frederick J. Lyons purported to restrain the said William McCoy from paying the said moneys to the plaintiff.

In pursuance of an order of the High Court, dated the 5th day of February, 1935, the said William McCoy paid into Court the said sum of £76 14s. 3d., and the said William McCoy was thereupon dismissed from the action.

The said William McCoy had no estate or interest in the premises, or any right or title thereto, or any connection therewith, other than as agent to the plaintiff. Neither the plaintiff nor the said William McCoy was ever rated in respect of the said premises or any of them, nor did their names appear in the Rate Book or in any assessment or demand note. No particulars of the said rates were ever served upon the plaintiff or upon the said William

McCoy as required by the Local Government (Rates on Small Dwellings) Act, 1928, or any of the statutes in that behalf.

The plaintiff was ready and willing to pay the rates on the said premises which accrued due subsequent to the 31st day of March, 1932, and, through his solicitors, tendered payment to the said Corporation, but the tender was refused and the said Corporation refused to accept any payment from the plaintiff unless he paid the arrears alleged to be due prior to the 31st of March, 1932.

The plaintiff contended that the notices served by the defendant, Frederick J. Lyons, on the said William McCoy were invalid in that the said William McCoy was not at any time relevant to this action owner of the said premises as defined in the said Local Government (Rates on Small Dwellings) Act, 1928, or at any date or time, nor was he beneficially interested in the said dwellinghouses or any of them, nor was any rate ever made on the said William McCoy as owner...