The Gazette 1975

About this time, the defendant decided that, due to changes in his family circumstances, he was not anxious to proceed with the sale, and was seeking advice about the return of his deposit. The defendant was advised he could not avoid the contract, and was reluctantly pre- pared to close. In November 1974 a preliminary meet- ing was held between the parties about the closing, and the defendant objected to the registered Judgment Mortgages not being discharged. Negotiations con- tinued about this and a further appointment for closing was made in January 1975. This did not take place, as the defendant raised objections about planning per- mission for a change of user which had recently occurred in the premises, which had not been satisfac- torily answered by the Longford Planning Authority. Shortly afterwards, the defendant, having inspected a Land Registry map, discovered for the first time that the lands included Folio 12386. Upon being informed of the existence of Folio 12386, the solicitor for the vendor obtained the Land Certificate relating to it, and pre- pared a new engrossed transfer of all three Folios. It was then agreed that the defendant would pay one month's interest. Terms were arranged whereby the moneys would be retained on joint deposit in the names of the two solicitors concerned. A final appointment was made for closing in the Four Courts on 18 March 1975 and the solicitor for the vendor, and the defendant and his solicitor attended. On the ground that two of the Judgment Mortgages had not been discharged, the defendant refused to complete, as the vendor refused the offer made by the defendant to retain £4,500 pending settlement of outstanding claims. The defendant claims as follows : (1) That, as Folio 12386 was not mentioned in the contract, the vendor had failed to show title. It was held that this was a genuine mutual mistake between the parties and that the vendor was able and willing to rectify the matter as soon as he became aware of it. (2) That, as this was a business contract, time must be deemed to be of the essence of the contract. As the defendant did not purport to repudiate the contract on the ground of delay, the vendor's delay was acquiesced in by the defendant. (3) That the title ultimately offered to the defendant was a doubtful title, and that therefore he was entitled to refuse to complete the contract. As regards the two Judgment Mortgages which were to be discharged six weeks after the completion of the contract, there was a difficulty that, by reason of the fact that Folio 12386 was not included in the contract, and that U.D.T. had not got their debenture charged on the property, consequently the interest of that Judgment Mortgage, which had been registered against Tractasales after the date of the contract and before the date of the transfer, would not be postponed to any interest arising from the subsequent transfer between the parties. It was held with hesitation that the delay period of six weeks after payment of the full purchase money and before the necessary cancellation of these Judgment Mortgages was a concession made by the defendant. The purchaser defendant at the closing on 18 March 1975 was entitled to insist'''that, upon payment of the whole purchase money, he would get a sufficient good title which he could entrust to a bank. Consequently the plaintiffs claim for specific performance must be dismissed. (Tempany v. Hynes — Finlay P. — unreported — in July 1975.) .297

Specific performance in sale of land refused due to defective title. The claim is for specific performance of an agreement made between the plaintiff as receiver of Tractasales (Longford) Ltd., and the defendant for the sale of a large garage and premises of that company contained in Folios 9792 and 12146, Co. Longford, on the Edge- worthstown road near Longford. These premises were in fact registered on three separate Folios, namely, Folio Nos. 9972, 12386 and 12146, all in County Long- ford. The total area of the three Folios was 2 acres, 2 roods and 6 perches. On 11 September 1969 by a Debenture issued by Tractasales (Longford) Ltd. to United Dominions Trust (Ireland) Ltd. (hereinafter called U.D.T.), the company charged its undertakings and all its property assets in exchange for a payment of £25,000 to U.D.T. On 1 June 1971 a second debenture on similar terms was made with U.D.T. By deed of 26 July 1971 the plaintiff was appointed by U.D.T. receiver of this property. The plaintiff as receiver caused the premises to be offered for sale by public auction on 26 February 1974. The defendant attended the auction, and was declared the purchaser, and signed a contract of purchase the same day for £30,500, having duly paid a deposit of £7,625. The standard conditions of sale of the Law Society were used. A special condition bound the Vendor to discharge all registered charges before closing, and to pay Land Registry fees for cancellation of the charge. However, the omission of any reference in the condi- tions of sale to Folio 12386 was a mutual mistake between the parties, as they thought they were dealing with all the Folios comprised in the premises. In Feb- ruary 1974, apart from the two charges to U.D.T., there was registered on Folio 9792 two further Judg- ment Mortgages, one of 23 November 1971 in favour of Doggett, and one of 26 March 1973 in favour of Smith; on the same date in 1973 a further Judgment Mort- gage in favour of Smith was registered on Folio 12146 and also on Folio 12386. The closing date of sale was fixed for 28 May 1974. The solicitors for the vendor sent a copy of the con- tract and of the debentures to the solicitor for the purchaser on 12 March 1974 and asked for Requisi- tions on Title. A reminder was sent on May 14 warning the purchaser that if the sale were not closed on May 30 interest would be charged. On May 12 Requistions on Title were sent by the solicitor for the purchaser, and replies were sent, together with a draft transfer approved for engrossment, on May 23. On May 22 Longford Arms Motor Works registered a further Judg- ment Mortgage against Tractasales for £1,429 in respect of each of the three Folios. This provoked further correspondence, and, on August 28 the solicitor for the purchaser inquired when the sale would be closed. There was a reply on September 24 enclosing a deed drafted by counsel, and expressing the hope that the Judgment Mortgages would be cleared. On 1 July 1974 Foster Finance had registered a further Judgment Mort- gage on Folios 12386 and 12146 against Tractasales for £2,250. On October 23 solicitors for the vendor wrote confirming that they would be in a position to close, and that the deed had been duly executed by the plain- tiff as receiver, by Tractasales and by U.D.T. As regards the other Judgment Mortgages, arrangements had been made with the parties concerned that their solicitors would attend the closing, and be paid out of the pro- ceeds of sale.