The Gazette 1979

MAY 1979

GAZETTE

the period within which this requirement could even be communicated to the Purchaser. A Court exercising an equitable jurisdiction could not allow a .vendor by such an unreasonable and unilateral act to escape its obligations. Patrick Kelly v. Park Hall School Limited — Supreme Court (per Henchy J. with Kenny and Parke JJ.) - 7 December 1978 - unreported. / i SALE OF LAND - SPECIFIC PERFORMANCE Sale of Land — Specific Performance — Agreement Typed on Auctioneers' headed notepaper deemed to be "Note or Memorandum in Writing'*. The third and fourth-named Defendants ("the owners") were in 1976 the proprietors of a house and 120 acres near Mallow, Co. Cork. They had given an equitable mortgage of the house and lands to the second-named Defendants ("the Northern Bank") and subsequently gave a legal mortgage (dated 14 November 1975) and a power of attorney (dated 11 February 1975) to the first-naiped Defendants ("Intercontinental") under which Intercontinental, who were at all times aware of the equitable mortgage held by the Northern Bank, could sell lands. In 1975 the owners were being pressed by their creditors and decided to sell the lands by auction. The auction was conducted by O'Keeffe ft O'Sullivan Limited ( " t he auctioneers") in November 1975 when the highest bid was £86,000, which the owners would not accept. The Plaintiff, who had attended the auction, was anxious to buy the lands and in January 1976 went to see the auctioneer who asked £150,000 for the lands but it was subsequently agreed on Friday, 30 January 1976 that the auctioneers would put an offer of £110,000 to the owners and get their authority to sign a contract. On Saturday, 31 January 1976, the auctioneers tele- phoned the Plaintiff and said "You are the owner of Park House. The farm is yours." It was arranged that the Plaintiff would come into the Auctioneers' Mallow office on the following Monday, 2 February 1976, to sign the contract and to pay the

There was some difficulty in the preparation of the map and the Christmas holidays intervened. Eventually the contract was sent out on the 13 January 1978 which was a Friday, with an accompanying letter which said:— "On the instructions of our clients, this offer remains open for acceptance by your clients for a period of seven days only from the date of this letter and we are instructed that, if the contract is not back with us within the said period of time, duly executed, the offer is deemed to be withdrawn". It did not reach the Plaintiffs solicitors until the following Tuesday, the 17 January 1978 and was then forwarded by them to the Plaintiff who was working in Cork and it did not reach him until after the period of the seven day ultimatum had expired. Although he had sent word to the Vendors on the 25 January 1978 that he was willing to sign the contract the Vendors said that by failing to sign and return it within the seven days of the 13 January 1978 he had forfeited his right to buy the land. The Plaintiff brought proceedings for specific performance of the contract and in the High Court, Hamilton J. granted an order for specific performance. The defendants appealed to the Supreme Court. Held (per Henchy J.) that the letter of the 19 December 1977 from H.W. to M.L. constituted the necessary note or memorandum in writing required to comply with the Statute of Frauds. It contained not only all the essential terms of the contract but also a recognition that a contract had been made. Since the (High Court) Judge, having heard all evidence, held that the oral agreement recorded in that letter was a completed agreement in the sense that nothing further was left to be negotiated, the words "we have agreed terms subject to contract" must be taken to mean that a contract had been made subject to it being formalised in writing. Held further that the delay in signing the contract was not the Plaintiff's fault. The Defendants allowed from 19 December 1977 to 13 January 1978 to pass before even sending out a contract. When the solicitors sent it out they coupled it with a requirement that it be signed and returned within seven days which in the circumstances was less than

deposit. On Monday, 2 February 1976, the auctioneers decided to draw up a written contract and get it aigned by the Plaintiff. It was dictated to a secretary who typed it on the auctioneers' headed notepaper and it read as follows: O'KeefTe ft O'Sullivan U n t y d . Auctioneers Valuers ft Estate Agents I, Patrick Casey, Gurrane House, Dunoughmore agree to purchase Park House and lands for £110,000.00 subject to contract and title. I agree to pay £25,250.00 as deposit, (signed) Patrick Casey. The names of the two auctioneer directors on the heading were printed. The words "subject to contract and title" had not been used during the meeting on Friday, 30 January 1976 or the telephone conversation on Saturday, 31 January 1976. The Plaintiff signed this document and then gave the auctioneers a cheque for £2.250 but asked them not .to present it for some time as he wanted to make arrangements for a loan to enable him to have funds so that the cheque would be paid when presented and that he could complete the purchase. The auctioneers then gave the keys of the property to the Plaintiff who retained them and produced them at the High Court hearing. The document signed by the Plaintiff was not signed by the auctioneers. Subsequently, the Plaintiff on his solicitor's advice went to the auctioneers who had the cheque and on the back of the cheque the auctioneers at the Plaintiff's request wrote the words: "Subject to title and contract; Deposit on Park House, Mallow, Co. Cork*" and the Plaintiff and Mr. O'Sullivafr of the auctioneers signed their names. The Plaintiff had not succeeded in getting a loan to meet the cheque for the deposit up the 20 February 1976 and the auctioneers had made enquiries as to whether the cheque would be paid when presented and had been informed that there were no funds to meet it and no arrangements made to deal with it. On the 20 February 1976 the auctioneers, who wanted the sale to go through, suggested that the amount of the deposit be reduced Directors: A. B. O'Keeffe, J. L. O'Sullivan.