O'Sullivan v O'Neill

• Jurisdiction: Ireland
• Judgment Date: 25 May 1963
• Date: 25 May 1963
• Court: High Court

O'Sullivan v. O'Neill.

FLORENCE O'SULLIVAN

Complainant

and

ANN O'NEILL

Defendant.

Local government - Rating - Judgment for rates recovered against primary occupier - Judgment unsatisfied - Six-day notice served on subsequent occupier - Validity of notice - Res judicata - Grand jury (Ireland) Act,1836 (6 & 7 Wm. 4, c. 116), s. 152 - Poor Relief (Ireland) Act, 1838 (1 & 2Vict., c. 56), s. 71 - Local Government (Dublin) Act, 1930 (No. 27 of 1930),s. 63, sub-s. 3.

Case Stated by Walter H. Molony, a Justice assigned to the Summary Division of the Dublin Metropolitan District Court, pursuant to the provisions of the Summary Jurisdiction Act, 1857.

A summons was issued on the 17th February, 1959, by the complainant, Florence O'Sullivan, against the defendant, Ann O'Neill, complaining that the defendant, having been duly served with a six-day notice did refuse, omit and fail to pay the complainant, the duly authorised rate collector of her district, the sum of £35 8s. 4d., being the amount due by her to the Corporation of Dublin in respect of her rateable holding situate at 38, Slieve Bloom Park in the City of Dublin.

The material facts appear fully in the judgment of Davitt P., infra. The District Justice found that the sum of £35 8s. 4d. was owing by the defendant, and, on the application of counsel for the defendant, stated and signed a Case for the opinion of the High Court as to whether he was right in so deciding.

The complainant served the defendant with a six-day notice requiring payment of £35 8s. 4d., being the rates payable in respect of certain premises in the City of Dublin, for the rateable year 1957/1958 and a moiety of those payable for the rateable, year 1958/1959. On her refusal to pay, a summons was issued against her in the District Court. F. W. was the occupier of the premises when the 1957/1958 rate was made. The complainant had previously proceeded similarly against F. W. to recover the 1957/1958 rates and had obtained an order for payment in the District Court against F. W. The rates remained unpaid. F. W. was not in occupation of the premises at the date when the 1958/1959 rate was made, but was rated as occupier. Subsequent to this date, the defendant went into, and remained in, occupation. On the hearing of a summons grounded upon the said six-day notice, she contended that the procedure adopted was only applicable to the person primarily liable; that the order against F. W. was a bar to further proceedings in respect of the same sum; and that the rate for 1958/1959 was bad since the person whom it purported to rate was not in occupation upon the date on which the rate was made.

Held by Davitt P. 1, that a six-day notice under s. 152 of the Grand Jury (Ireland) Act, 1836, may be validly served upon a subsequent occupier;

2, An order for payment of the rates against the person primarily liable is no bar to proceedings to recover the same rates from a subsequent occupier:Vestry of Bermondsey v. RamseyL.R. 6 C.P. 247, approved;

3, The 1958/1959 rate was bad, having been made against a person not in occupation.

Guardians, New Ross Union v. Byrne 30 L. R. Ir. 160 and Donegal Co. Council v. M'Crossan[1919] 2 I. R. 88 followed.

Cur. adv. vult.

Davitt P. :—

The facts of this case appear, briefly summarised, to be as follows: the defendant, Ann O'Neill, became the occupier of 38, Slieve Bloom Park, Drumcondra on the 27th October, 1958, and continued in occupation at all material times thereafter. The complainant, Florence O'Sullivan, at all material times was the collector authorised by the Corporation of Dublin to collect the municipal rate in the district in which the house is situate. When the rate for the year 1957/1958, ending on the 31st March, 1958, was struck the rated occupier of the house was Francis Warnock. He was in actual occupation of the house when the rate was made on the 29th April...