The Gazette 1978

GAZETTE

APRIL 1978

Appeal asked the Supreme Court to order a new trial on the issue of damages or alternatively that it should determine the compensation to which he was entitled. The Defendant served no Cross-Notice of Appeal. Counsel for the Defendant argued that it was unnecessary to do so as in his view since the Plaintiff had asked the Court to assess the damages, he could contend that the damages were excessive without serving a Notice to vary the High Court Order. Kenny, Lheld that this was not a correct interpretation of the Rules. Order 58, r.8 allows the Supreme Court to make any Order necessary, including an Order varying the High Court Order and Order 58, r. 10 makes it dear that the Defendant could contend that the damages were excessive without serving a cross Notice of Appeal but that he may then be penalised in costs. Per Kenny, J. "When one party appeals on the grounds that the damages awarded are too low, the other party, if he wishes to contend that they were too excessive, must serve a notice giving that information to the party appealing. If he does not, the other party may ask for an adjournment or the party applying to vary the High Court Order may be penalised in costs." The Supreme Court varied the High Court Order by substituting the figure of £2,243 for £4,000 and made no Order as to costs. In the Matter of the Trusts of the Will of Simon Sheil and in the Matter of an Issue between John A. Browne and Most Rev. Patrick Mulligan, Francis Gallagher and Ors - Supreme Court (per Kenny, J., with O'Higgins, J. and Parke, J.) - unreported - 23 November 1977. SALE OF LAND Specific Performance of an alleged Agreement for lease refused—No note of date of commencement of lease. The Defendants were building houses on nine sites at Killincy, County Dublin under a Liccncc, on lands owned by a merchant bank ("the Bank"). One term of the Liccnce was that the Bank would grant Lenses to the purchasers of the houses built by the Defendants. The Defendants had engaged an auctioneering firm to act as selling agents for the houses. On 17 May, 1975 the Plaintiffs npproachcd a director of the auctioneering firm and

expressed interest in purchasing the house to be built on Site 105. A brochure which the auctioneer gave the Plaintiffs opened with the words: "Wc are now accepting booking deposits to secure these executive styled properties now being erected by Arvan Homes Limited". At the bottom of the brochure, the words "Lease 250 years, G.R. £0.5 and Booking Deposits £1,000.00" appeared. After some further negotiations, the Plaintiffs went back to the auctioneer on 24 May 1975, and told him that they had decided to buy the house for £13,800.00, and he told them they could secure the house if they paid him a deposit of £1,000.00. He also told them that a further £1,500.00 would have to be paid when the contract was sent to their solicitors. The completion date was agreed as 1 March, 1976. The first-named Plaintiff gave the auctioneer a cheque of £1,000.00, who wrote a receipt which read— "Dated 24th May, 1975. Received from John Michael O'Flahcrty of Churchview Road, Killiney the sum of £1,000.00 on Site 105, Grenville Road. Killiney at the fixed price of £13,800.00. This deposit is taken subject to Contract. Also to the approval of a loan to the Purchaser of £6,000.00. Redpath Properties Limited". On 28 August, 1975 the Bank made a Lease of the site to the Defendants for 250 years from 29 September, 1970 at a rent of £0.5 per annum. Also in August 1975, the Defendants' Solicitors sent a draft con t r act and title documen ts (including a lease) to the Plaintiffs' Solicotors. who amended it and returned it, but it was never signed by either party. The Defendants declined to go on with the transaction, as they had secured a purchase at a higher price, and they returned the deposit. The Plaintiffs' claim was for specific performance of the agreement of 24 May, 1975. Their Counsel in Court said that he was asking for specific pcrformarce of a contract to grant a Lease.

reference to this; there was never an enforceable agreement by the Defendants to grant a Lease to the Plaintiff. John M. OTlaherty and Catherine O'Flaherty v. Arvan Properties Limited. — Supreme Court (Henchy J., Kenny J. and Parke J.) — unreported — 21 July, 1977. TRADE MARKS Wh en a wo rd f o r wh i ch registration as a trade mark is sought in Part A of the Register, is one in a foreign language, the controller and the Court must not treat the application as one for the registration of the corresponding English or Irish word. It is irrelevant that the foreign word, when translated, would have a "direct reference to the character or quality of the goods" in such that it could not be registered because of infringement of S. 17(i)(d) of the Trade Marks Act, 1963; what matters is that the foreign work per se has no direct reference to the character or quality of the goods. The Plaintiffs, engaged in the manufacture of perfumes and toilet preparations, applied for registration as a trade mark the word "Kiku", for perfumes, cosmetic preparations, non-medical toilet preparations and toilet soap. The word "Kiku" is a word in the Japanese language and means " ch r ys an t hemum". The Controller refused the application. The Plaintiffs appealed to the High Court under S57 of the Trade Marks Act, 1963. Kenny J. granted a declaration that the word "Kiku" was registrable as a trade mark in Part A but gave leave to the Controller to appeal to the Supreme Court on a specified question of law. The question of law specified by the High Court was: "whether when a word for which registration as a trade mark is sought is one in a foreign language the Controller and the Court must treat the application as one for the registration of the corresponding English or Irish word". Held: that the question submitted to the Court would be answered in the negative. Per O'Higgins, C J . : "It is in this country that the trade mark is to be used and it is the people trading in this country to whom protection is to be given. The word in question being not only a foreign word but a word from a language with which ordinary people in Ireland have no familiarity whatsoever, it seems to follow without question that such a word can have no meaning and no v

Held: (per Kenny, J.), referring to Marshall v. Berridge (1881) 19 Ch. D. 233, IV'vse v. Russell (1882) 1 1 L . R. lr. 173 and Kerns v. Manning [19351 I.R. 869, that the date of the commencement of the period for which the Lease is to be granted is an essential term in a contract to grant a Lease if it is to be enforceable*. In this ease there was no agreement or