The Gazette 1980

GAZETTE

JULY-AUGUST

1980

of each of the appellants for a certificate of leave to appeal against the conviction of each of them was dismissed. D.P.P. v. William Thomas Moore and D.P.P. v. Brendan 0*Sullivan, Court of Criminal Appeal (per Finlay P. with Griffin and Costello J.J.) - 29 May 1979 — unreported. CRIMINAL PROCEDURE Petty Sessions (Ireland) Act, 1851, Section 10 (4). Whether the six months limit for the commencement of proceedings in the District Court is a matter of defence, or docs it go to the jurisdiction of die Court to entertain the Summons. The Defendants were vegetable wholesalers, and were summonsed by the Minister for Agriculture (the Complainant) for allegedly dis- playing vegetables which failed to conform to common quality standards set by an EEC Directive. The alleged offence took place on 30 May 1977, and the return date of the Summons was 1 February 1978. The Summons did not bear on its face any note of the date on which it had been issued by the District Court Clerk. The Defendant contended in the District Court that there was there- fore no proof before the District Jus- tice that the proceedings had com- menced within the six month time limit after the date of the alleged offence provided for by Section 10 (4) of the Petty Sessions (Ireland) Act, 1851. The Complainant sought to adduce evidence that the summons had been issued within the six month period by relying on an endorsement of service on the summons which indicated that it had been served within the six month period. The District Justice, however, held that he lacked jurisdiction to enter upon the hearing of the summons, and indicated that he proposed to strike it out. The Complainant then asked the District Justice to state a case for the opinion of the High Court on the matter. Held: (per Finlay P.) 1. That if, in fact, the complaint

Premises having been insured with that Group against fire for the sum of £5,000 in the names of the second Defendant and fourth Defendant, two of the directors of the first Defendant, for the year period from 19 September 1978 until 18 September 1979. Fire damaged the premises in March 1979, and on 27 July 1979, the two Plaintiffs, being the owners of the lessors' interest in the premises, obtained judgment against the first, second and fourth Defendants for the sum of £12,000 being the cost of repairing the premises, and £1,900 for costs. This matter came before the Court by way of an application by the Plaintiffs for an order of garnishee attaching the sum of £5,000 payable to the Defendants (or one or more of them) by the Sun Alliance under the fire policy. The third party Bank (as equitable mortgagees of the premises by de- posit of title deeds) opposed the application of the Plaintiffs, on the grounds that the Bank had an interest in the premises, that the Plaintiffs could not have a greater interest in the money than the insured, and that the Bank had a right of some sort to have its security maintained, although as was pointed out in the judgment, no authority was cited for this proposition. A further argument on behalf of the Bank was based on the provisions of Section 23 (4) of the Conveyancing Act, 1881. Section 23 (4) of the 1881 Act provides as fol- lows:— (3) All money received on an insur- ance effected under the mort- gage deed or under this Act shall, if the mortgage so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received. (4) Without prejudice to any oblig- ation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage. It was submitted on behalf of the Plaintiffs that the Bank did not give any notice requiring the insurance

would be afforded to the Defendant. 2. That the time limit, arising under Section 10 of the Petty Sessions (Ireland) Act, 1851, was a matter of defence to the Defendant only, and did not go to the jurisdiction of the District Court to entertain the summons. 3. That therefore, the Complainant should have been permitted to prove the date of the issue of the summons by referring to the endorsement of Service on the summons once the Defendant had raised the question of the time limit. 4. That accordingly, the District Justice was not correct in law in holding that he had no juris- diction to enter upon the hearing of the complaint. In the Course of his decision, Finlay P. referred to the cases of:— The State (James Hempenstall) v. Judge Shannon and District Justice Reddon [1936] I.R. 326 and The Attorney General v. Conlon (1937] I.R. 762. The Minister for Agriculture v. Norgro Limited - High Court, (per Finlay p.) 2 3 July 19 79 - unreported. INSURANCE — CONVEYANCING ACT 1881 SECTION 23 (4) Mortgaged premises damaged by fire — equitable mortgagee (by deposit of mortgage deeds) entitled to proceeds of insurance policy effected by mort- gagor, where insurance company not- ified of mortgage. The premises, in Parnell Square, Dublin, were held by the first Defendant under a lease for a term of 900 years, which contained a covenant by the lessee to repair, but did not contain any covenant to insure. By resolution of the first Defendant dated 30 September 1977, the third Defendant was auth- orised to deposit the title deeds of the premises with the third party Bank, and this deposit was made on the same day. Notice of this deposit was given to the Sun Alliance and London Insurance Group by the Bank on 31 January 1979, the

had not been made and the sum- mons had not been issued within six months of the date of the alleged offence, a good defence