The Gazette 1967/71

Contract Insolvent Auctioneer Stakeholder—Principles Applicable Plaintiff Company, acting through a Dublin Solicitor, wished to purchase from Defendant, a Cork Solicitor, premises in Grand Parade, Cork, subject to the following conditions:— 1. The preliminary agreement between the plaintiffs and a Cork Auctioneer was to be subject to a subsequent satisfactory contract, which would pro vide for completion within six months of contract This unenforceable agreement was finalised on i8th July 1965 when the purchase price was stated to be £11,000, and made subject to a subsequent formal agreement. 2. It was also made subject to town planning approval of the ground landlords for erection of new pre mises of not more than 5 storeys. The plaintiffs as purchasers paid the auctioneer £1,000 as STAKEHOLDERS such deposit being repayable immediately in full if a satisfactory contract were not signed within 3 months. As a result of difficulties with Cork Corporation, the sale was never completed. The plaintiffs tried to recover the deposit from the Auctioneer, but only succeeded in obtaining £399 odd. The Auctioneer was insolvent, but the plaintiffs failed to notify his guaran tors of the proceedings, and so could not recover anything against them under the Auctioneers Acts. The plaintiff claimed the balance of thei deposit for the default of the Auctioneer. The Auctioneer was not the defendant's agent to negotiate the sale, or to receive the deposit. Kenny J. reviewed all the authorities in relation to the term "STAKEHOLDER" from 1816 onwards, and, on the strength of them, held that the Defendant Vendor must bear the loss when the stakeholder cannot pay the deposit. The deposit paid to a Stakeholder is a payment in part of the purchase money. When a sale cannot be completed, and the purchaser becomes entitled to recover the deposit from the Stakeholder, the Vendor should be held liable for the default. Even though the Vendor was innocent in the matter there must be judg ment against him for the £601 odd. (Lamas Overseas Investments Ltd. v. Harvey—Kenny J.—26th January 1970—unreported). Costs Iteirs of Cost Determined by Taxing Master Reasonable In The State (Michael Browne) v. The Governor of Limerick Prison and District Justice Feran (1967) I.R. 14?—the Supreme Court had held that henceforth the State may appeal from an order of release given by the High Court in habeas corpus proceedings. Arising out of this decision, the prcsecutor presented a bill of costs relating the Supreme Court appeal before the Taxing Master, and the Taxing Master subsequently increased the amounts on some items, but the prosecutor was still dissatisfieid and appealed to the High Court to review these items. In this connection, Murnaghan J. held as follows:— (i) He should only review the taxation where it was demonstrated that the Taxing Master erred in principle or in amount. rz) The length of time an appeal is at hearing in the Supreme Court is not to be taken into account in fixing the solicitor's instruction fee. 101

Drainage beards were held to have a right to enter land for the purpose of exercising any of their functions under the Land Drainage Act, 1930, on giving seven days' notice. Patterson and Another v. Fanningly Internal Drainage Board. Q.B.D. 28 Jan. 1970. The courts have no jurisdiction to determine whether or not national insurance contributions have been paid, Mr. Justice Chapman decided when he ordered the question to be referred to the Secretary of State for Social Services for him to determine it. His Lordship said that the Minister had to administer a complex and compre hensive scheme, and that there would be endless sources of ccnfusion and doubt if he did not retain sole control Department of Health and Social Security v. Walker Dean Walker Ltd. Q.B.D. 4/2/70. Contract Their Lordships held that a covenant restraining a milk roundsman, for one year after leaving the employ ment of dairymen, from serving or selling milk or dairy produce to any person who at any time during the six months prior to his leaving the dairymen's employment had been a customer of that dairy and served by him wrs not too wide and was accordingly enforceable Horre Counties Dairies Ltd. and Another v. Skilton and Another. Court of Appeal, 21/1/70. When a buyer telephones a cable in answer to a cabled offer, the onus is on him to ensure that his message is properly received by the cable company, Mr. Justice Waller decided, in a reserved judgment awarding £3,728 damages to a Canadian charter flight company for breach of contract to sell him an amphibious aircraft. Nortland Airlines, of Winnipeg, succeeded in a claim against Denis Ferranti Meters Ltd., of Bangor, North Wales, over a Grumman Mallard aircraft with a quick exchange com ponent engine and spare parts. Northcraft Airlines Ltd. v. Denis Ferranti Meters Ltd. Q.B.D. 12/2/70. The Sunday Observance Act, 1677, did not operate to invalidate a binding contract in writing made on a Sunday in 1968 between ?n English company and a Portuguese company, Mr. Justice Mocatta decided when giving judg ment for the English company on a preliminary issue. The dispute arose over an order by Rolloswin Invest ments Ltd., the plaintiffs, to Chromolit Portugal Cute- larias E. Productos, Metalicos, S.A.R.L., the defendants for 100,000 sets of 24 pieces of cutlery in boxes. The question in the issue was whether a contract in writing containing a submission to arbitration had been entered into between the parties on October 20, 1968. His Lordship said that the plaintiffs were a one-man company. It was incorporated in 1965, with Mr. Gabriel Moschi as managing director. The order was hand written, in block capitals, rn three sheets of the plaintiff's headed notepaper. It had been written by a sales repre sentative of the defendants, acting as interpreter for one of their directors who signed it. It was also signed by another director who was in London and had taken part in the negotiations. Rolloswin Investments Ltd. v. Chromolit Portugal Cute- hrias E. Productos Metalicos S.A.R.L. Court of Appeal, 10/2/70.