The Gazette 1979

GAZETTE

JULY-AUGUST

197

a deed of transfer which it was his legal obligation to execute. In view of this and in view of the fact that the sale was not at an under-value the various attacks mounted on this transaction failed. Frederick W. Smyth v. Thomas Smyth - High Court (Costello J.) - unreported - 22 November 1978. Validity of Grounds for Refusal of Permission — Premises subject to Compulsory Purchase Order under Housing Act, 1966. On the 27 June 1978 and by a renewed application on 14 August 1978 the prosecutor (Patrick Sweeney) applied to Limerick County Council for planning permission to erect 13 dwellinghouses on a plot of land at Glin. By a decision, notifi- cation of which was issued on 22 September 1978, the County Council refused the permission for the following reasons: "The site formed part or all of an area in respect of which a compulsory purchase order has been made by the Limerick County Council. This proposal for development is therefore pre- mature pending the determination of this order by the Minister for the Environment." Limerick C.C. had purported to acquire the lands for the purposes of the Housing Act, 1966, and the prosecutor having objected to the making of the C.P.O. the Minister for the Environment had on 16 August 1978 ordered a public enquiry to be held concerning the making of the order. The prosecutor's submission was that the Planning Authority in considering an application for permission for development was confined to considerations concerning the proper planning and development of the area and that the mere making of a C.P.O. was a change of ownership only and that, without further details, the purpose for which it was intended to use the lands if the C.P.O. was confirmed did not indicate any question concerning the proper planning and develop- ment of the area. The prosecutor also relied on the fact that the terms of the refusal did not indicate that the C.P.O. was for the purpose of the Housing Acts and did not set out which of the many purposes of the PLANNING AND DEVELOPMENT

whether the Defendant owed a duty to the Plaintiff to ensure that he obtained professional advice of some sort, it was clear that when this bargain was struck, albeit in a casual and informal way, the parties envisaged that a formal contract would be required. The Defendant was, therefore, aware that the Plaintiff would have available to him the advice of a solicitor before such a formal contract was executed. Thus, the Plaintiff did have available to him the benefit of a solicitor's advice before he signed the contract. It is clear that the Defendant gave no thought to whether that legal advice was independent (i.e. from a separate solicitor), but the Court found that the solicitor in question was an experienced one and had he considered that separate advice was necessary he would have so advised the parties. The solicitor in question did not so advise and in view of the fact that he had been aware of the value of this land as sworn for probate purposes (i.e. £2,400) he did not consider the transaction an improvident one from the Plaintiffs point of view. Held (per Costello J.) that even though the deed of transfer was not executed until August 1973 by which time the land had increased in value, this did not affect the Defendant's duty to the Plaintiff. A valid contract had been entered into in August 1968 and the Plaintiff was legally bound by it and the delay in completion did not impose any new obligations on the Defendant. Held further that the transaction was not vitiated by undue influence. The Defendant did not attempt to influence the Plaintiffs decision and the Plaintiff had freely and with an independent will entered into the bargain with the Defendant. Held finally, having considered the equitable principles relating to unconscionable bargains and that equity comes to the rescue whenever parties to a Contract have not met on equal terms, that the Plaintiff was not suffering from any physical or mental infirmity when the contract was entered into in 1968 and that even though by the time the transfer was executed in 1973 the Plaintiffs health had deteriorated, if the contract he had entered into was a legally valid one then this subsequent deterioration of his health would not invalidate it or entitle him to set aside

alcoholism in 1972 and in early 1974 was diagnosed as an alcoholic, although the doctor was of the opinion that the Plaintiff had been suffering from this complaint for some two or three years and, furthermore, that he was suffering from anxiety depression. There was, however, no evidence that these conditions existed at the time the contract was signed in August, 1968. Also, notwithstanding that the Plaintiff had a steady job and an income from the yard attached to the dwellinghouse where he resided in addition to some £2,000 from the deceased's Estate, it was clear that he was in need of money. However, it was equally clear that the Plaintiff in no way suggested to the Defendant that he was in urgent need of money nor that the Defendant sought to take advantage of the seller's infirmity or his straitened financial circum- stances. The Court, in considering the question that the transaction between the Plaintiff and the Defendant was a sale by a cestui que trust to a trustee, referred to the following statement from Lewin on Trusts (16th ed. pp. 697/698): "While a purchase by a trustee conducting the sale, either personally or by his agent, cannot stand, a purchase by a trustee from a cestui que trust of the interest of the latter in the trust may stand, if the trustee can show that the fullest information and every advantage were given to the cestui que trust. However, a purchase by a trustee from a cestui que trust is at all times a transaction of great nicety, and one which the Courts will watch with the utmost jealousy and will set aside if the consideration was insufficient". It is thus clear that the onus of proving the bona fides of the transac- tion was on the Defendant and one had to ascertain whether any unfair advantage was taken by the Defen- dant in his dealings with the Plaintiff. The Court found that the Defendant had paid what he considered was a fair price for the land, and the price was in fact a fair one. The Defendant had no knowledge about its value of which the Plaintiff was also ignorant, and the Defendant made no effort either to take advantage of his special position as trustee or to influence the Plaintiffs decision to sell. As to