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GAZETTE
SEPTEMBER 1979
Company was required to demand
and, if necessary, enforce payment of
specified debts; to lodge the proceeds
of any such collections to its bank
account; and to give the major
creditors full access to its books and
records. But nowhere was it
suggested that the Company
pay over
the debts so collected to the major
creditors. The absence of such an
obligation supported, rather than
weakened, the inference that it was
intended that the Company was to be
entitled to retain book debts as they
were paid and to create new ones
from time to time. In other words the
Company was entitled to deal with its
book debts in the ordinary course of
its business until such time as the
major creditors became entitled to
intervene in the Company's affairs.
The debenture, the Court concluded,
must be so construed.
The Court having dealt, as above,
with the inferences to be drawn from
the provisions of the debenture,
continued its construction of the
charge on book debts contained in
clause 3(b) by applying the three tests
of a floating charge as suggested by
Romer L J . in the Court of Appeal
in the
Yorkshire
Woolcombers
Association case
[1903] 2 Ch., at p.
295), namely —
1. Is it a charge on a class of
assets of the Company present
and future?
2. Is that class one which, in the
ordinary business of the
Company, is changing from
time to tjme?
3. Is it contemplated by the
charge that, until some further
step is taken on behalf of those
interested in the charge, the
Company may carry on its
business in the ordinary way as
far as that particular class of
assets is concerned?
In applying these tests to the charge
at clause 3(b) of the debenture under
consideration the Court was satisfied
1. That the charge was a charge
over moneys due or to become
due to the Company from both
existing and future debtors.
2. That the charge was a charge
on a class of assets which in
the ordinary course of the
Company's business would be
changing from time to time.
3. That
the
debenture
contemplated
that
the
Company should carry on its
business in the ordinary way,
and receive payment from its
debtors from time to time,
without regard to the charge
over the book debts until some
future event happened which
would justify intervention by
the debenture holders in the
Company's affairs.
A submission made on behalf of the
debenture holders that the charge on
book debts was divisible as between
existing book debts and future book
debts and that sub-clause 3(b) created
a fixed charge on existing book debts
whilst sub-clause 3(e) created a
floating charge over future book
debts, i.e. book debts coming into
existence at a future time, was
rejected by the Court.
Held
(per Costello J.) that the
debenture was invalid by virtue of the
provisions of Section 288 of the
Companies Act, 1963 to the extent
to which it purported to charge the
book debts of the Company in favour
of the creditors to whom it was
issued.
In the matter of
Lakeglen
Construction
Limited
(In
Liquidation) and In the matter of the
Companies Act, 1963 — High
Court (per Costello J.) — 20
December, 1978 — Unreported.
CRIMINAL LAW
Jurisdiction of District Court to try
minor offences. Extent of Section
2(2) of Criminal Justice Act, 1951.
Purpose of Section is to prevent
accused being deprived of his right to
trial by jury upon a non-minor
offence. Purpose not necessarily
defeated by inadequate summary of
facts upon which a District Justice
formed the opinion that an offence
constituted a minor offence.
On 18 July, 1978 the Prosecutors,
both members of the Ga d ra
Siochana, appeared before the
District Court charged with assault
occasioning bodily harm. Each
elected to be tried in the District
Court and in reply to the District
Justice the solicitor for the Director
of Public Prosecutions stated that the
assault alleged was one in which the
victim had received a swollen face
but was not a bad assault. The case
was heard on 15 and 20 December,
1978, and during the course of the
hearing it was alleged that the
Prosecutors had pursued the injured
party in a motor car and forced him
into their motor car and then
assaulted him to compel him to reveal
the whereabouts of his brother, that
the injured party's brother was
compelled to give one of the
Prosecutors £5 and that in the course
of the motor journey threats of
violence were made against the
injured party. On 20 December,
1978, the Prosecutors were each
convicted of the offence charged and
each sentenced to six months
imprisonment.
On 21 December, 1978, the
Prosecutors applied for and obtained
conditional Orders of Certiorari
against the District Justice on the
ground "that the said District Justice
did not conduct any enquiry as to
whether the facts alleged constituted
a minor offence and did not form the
opinion that the facts alleged did
constitute a minor offence". The
Prosecutor's original affidavit was
controverted by the District Justice
who showed cause. The Prosecutors
filed further affidavits stating that no
proper or adequate general statement
of the facts of the case was heard by
the District Justice before he
embarked on the hearing and that the
facts alleged could not possibly be
considered a minor offence. They
were allowed to argue this further
ground.
The argument centred on the
provisions of Section 2(2Xa) of the
Criminal Justice Act, 1951, which
permitted an indictable offence (such
as each of the Prosecutors was
charged with) to be tried summarily
in the District Court provided two
conditions were fulfilled, namely,
(1) the Court was of opinion that
the facts proved or alleged
constituted a minor offence fit
to be so tried and
(2) the accused on being informed
of his right to be tried with a
jury does not object to being
tried summarily.
The High Court referred to the
decision of Butler J. in
The State
(Nevin) v. Tormey,
[1976] I.R. 1
which held that it was not sufficient
for the District Justice to hear the
evidence and then, if satisfied that it
was a minor offence, to convict; but
the District Justice must, before
embarking on the trial of the offence
and as a necessary preliminary to
jurisdiction, have formed the opinion