Gisborne Borough Council v. E. P. Joyce.

Gisborne Standard and Cook County Gazette, Volume IV, Issue 500, 30 August 1890, Page 3

Gisborne Borough Council v. E. P. Joyce.

[srttCtAl. TO THS STANDARD.] Auckland, August 27. [The following full report of the appeal in the above case was crowded out of our last issue ] A case of some interest to ratepayers was heard this morning before Mr Justice Conolly, in Banco. It was that of Edward Joyce v. John Bourke (Town C’erk of Gisborne). Mr Bees moved that ths judgment given by the B.M. in this case be reversed. Mr E. Hesketh appeared for the respondent defendant in the Case,

Mr Rees stated the facts of the ease. Rates to the amount of £39 9s were duo on a certain property owned by Edward P. Joyce, and occupied by J. R. Scott. Scott was sued, but he became bankrupt, and the Town Clerk withdrew the action and claimed payment of the debt from the Official Assignee, though he made no proof of the debt. The sum was not paid, and the Council pushed their prr-f-rential claim. On the 24 h January, 1890, the Council passed a special resolution bringi g into force sections 25 to 51 of the Rating Act, 1882, and on the 4th March this special resolution was confirmed. Their demand was made on Mr Joyce for the rates, and judgment was given for the Council by the Gisborne lt.M. (Mr Booth). The question was now whether the Magistrate’s decision was law. Mr Reee said the points on which he relied were that the action brought in the Court below was under the Rating Act, 1882, but to bring the necessary sections of that- Act into force, a special resolution must be passed by the Borough Council, and duly confirmed. Now the original resolution was carried on the 24th of January, 1890, and another meeting was called for the 16th of July to confirm it. There was then no quorum, and the meeting was adjourned to the 4 h March, five days after, when the resolution was confirmed, but the section of the Act providing for an adjournment states that such adjourned meeting eliall be held not later than three days after the adjournment. As the meeting was not held till five days after, the confirmation must have been ultra vires, and therefore the resolution was void, and an entirely fresh meeting would have been necessary. Secondly, the claim for rates was made in the bankrupt estate of Soott, and section 105 of the Bankruptcy Act, 1883. provides that a claim for debt on a bankrupt estate shall be deemed an election by creditors to take the benefit of the Bankruptcy Act in lespect to that debt. It was stated that in this case no proof of debt had been put in, but he contended that the letters of the Town Clerk to the Official Assignee were sufficient to be considered a claim Again, Scott became bank, rupt on the 19th September, 1889, and the claim having been made by the Council against Scott’s estate, and no claim having beeen made against Joyce till after the 4 h March, he could not reoover from Scott’s estate, and was therefore prevented from him'e'f making a proof against the estate within the four months allowed by law. On these three.pointa he rested his case, Mr Hesketh said the point he expected to he raised had not been touched by his friend. That point was whether the Council could pass a special resolution to make an owner liable for rates after the time had gone by when he might have been sued. As regards Mr Rees' first point, he submitted that section 105 of the Act of 1886 was directory, not mandatory, and compliance with its directions was not fatal. The section-was meant to apply to public purposes, and therefore must not be considered imperative. He quoted Justice Lindley on company law, page 272, Queen v. Ipgall (2 q. b. dw., pt 96), ftnd Callow v. Picksill (2 c. ?. dw. b.— 6,-562.) Than the operation of section 4 of the Act of 1888 was retrospective, and made an owner liable even though ha had ceased to be so under the Act of 1882. In regard to the seo’ion iu point there was no proof the estate was in bankruptcy, and therefore no election was made by the creditor. This had been decided by Mr Justice Richmond in this Court in ex parte Uncles. Then the bringing of an action qgajnat Scott coul 1 not avail the owner. Mr Rees Sri-fly replied. He admitted that section 4 of the Act of 1888 was retrospective, but it did pot apply, apdhe must submit that it is always taken that n»gativc words are mandatory, and therefore section 105 must be considered mandatory, His Honor said the case of the Queen v. Ingall quoted by Mr Heske’h was not on the same as the present case. He must hold tharnegative words are mandatory, and therefore by strict law his judgment must be that the, appeal must be allowed on the first point raised by Mr Rees, that the provisions of the Rating Act cf 1882 were never properly brought into force. On the other points it would therefore be unnecessary for him to determine, Judgment would therefore be for appellant, with costs seven guineas,