Kirkwood v Gadd
[1910] A.C. 422(Judgment by: Lord Loreburn LC (including background))
Between: Kirkwood - Appellant
And: Gadd - Respondent
Judges:
Lord Loreburn LCLord James of Hereford
Lord Atkinson
Lord Shaw of Dunfermline
Lord Mersey
Subject References:
MONEY-LENDER
Business carried on at other than Registered Address
Loan effected at Borrower's Residence
Illegality
Bill of Sale
Legislative References:
Money-lenders Act, 1900 (63 & 64 Vict. c. 51) - s. 2, sub-s. 1 (b)
Judgment date: 10 June 1910
Judgment by:
Lord Loreburn LC (including background)
The Money-lenders Act, 1900, in requiring that a money-lender "shall carry on the money-lending busing in his registered name and in no other name and under no other description, and at his registered address or addresses and at no other address," does not mean that every stage and every incident of every piece of the money-lending business is to be transacted at the registered office.
The question is a question of fact, not of law, and must be answered according to the circumstances of the case.
Decision of the Court of Appeal, [1909] 2 K.B. 353 , reversed and the interim injunction discharged.
The circumstances of this appeal are stated in the judgment of Lord Mersey.
Sir Robert Finlay, K.C., and Montague Lush, K.C. (Shearman, K.C., W. de B. Herbert, and J. B. Matthews with them), for the appellant.
Ritter and W. H. Jones (Allan Ramsay with them), for the respondent.
The arguments urged on both sides are fully stated in the report of the decision below and dealt with in this House. No fresh authorities were cited; it will be observed that the ultimate decision after consideration was wholly on the facts.
June 10. Lord Loreburn L.C.
My Lords, in this case an interim injunction has been granted by the Court of Appeal to prevent a money-lender from taking possession under a bill of sale, upon the ground that the agreement for the loan, the advance of the money, and the taking of the security were all transacted not at the money-lender's registered address but at the borrower's private residence. It was so in fact, upon the materials before us, but some letters making the appointment at the borrower's residence with a view to arranging the loan were written to and received from the registered address.
Your Lordships are asked to say whether or not the arrangement of the loan in this way was contrary to the Money-lenders Act, 1900. I expressly limit my opinion to that point, which alone has been argued before us.
The 2nd section of the Act, sub-s. 1 (b), requires that a money-lender "shall carry on the money-lending business in his registered name, and in no other name and under no other description, and at his registered address or addresses, and at no other address." Sect. 2, sub-s. 2, also provides that "If a money-lender .... carries on business .... elsewhere than at his registered address or fails to comply with any other requirement of this section," he shall be liable to fine or imprisonment for a second offence as prescribed.
This enactment contains a positive direction, that the man shall carry on the business at the registered address. It also contains a negative one, that he shall not carry on business elsewhere.
What is carrying on business? It imports a series or repetition of acts. Each separate piece of business may consist of many stages and incidents, and the business as a whole comprises many separate pieces. This Act of Parliament cannot mean that every stage and every incident of every piece of the money-lending business is to be transacted at the registered office. That would be impossible, for such things as making inventories or taking possession of furniture under a bill of sale are part of the business and must be done where the goods are situated. Nor can it be intended to prohibit the employment of clerks and agents, or the transaction outside the registered address of every single thing that could by possibility be transacted within it. That would be needlessly oppressive and would strain the words. We must look at the nature of the mischief disclosed according to the approved canons of statutory construction. The mischief is that this dangerous business may be conducted by persons under false names or a variety of names without the security of an ascertained address, or at places where men may be taken unawares or off their guard. The words, which are in terms general, must be applied accordingly.
I do not propose to define what is meant by carrying on business lest I may facilitate evasion. But I do think that if a money-lender really deals with a borrower at his registered address, whether by interview or correspondence, he may, without infringing the Act, transact negotiations, or conclude the actual contract, elsewhere.
If, however, the money-lender employs an agent to frequent markets, or call upon individuals in order to procure borrowers, and thereupon a money-lending transaction, even a single transaction, goes through without the borrower being brought into communication with the registered address till after the transaction is completed, it might amount to carrying on business elsewhere than at his registered address. There may be many cases betwixt and between.
It is always a question of fact, the answer to which depends on the circumstances of the case.
I can see that nice points may arise in applying this section of the Act. It must be so inevitably when general language of this kind is used in the Act. But such points are not matter of law if there is evidence to support the conclusion. They are points of fact and should be so regarded.
I do not think that this is a case in which an interim injunction should be granted. So far as I can see on the materials before us, this piece of business was directed and controlled at the registered address, and the borrower dealt with the lender at the registered address. I do not prejudge it, however, and it must be decided on actual evidence at the trial.
As there are other matters to be disposed of at the hearing which were not argued here, the parties have agreed to an undertaking, and I move your Lordships to dissolve the injunction, all costs here and below to be costs in the cause.