The Gazette 1979

GAZETTE

JULY-AUGUST

1979

Housing Acts it was intended to use the lands for, if they were finally acquired. Held (per Finlay P.) that the purpose of the obligation on the Planning Authority is to set out in their notification of a refusal the reasons for the decision was firstly to give the information that may be necessary and appropriate for the applicant to consider whether he has a reasonable chance of succeeding in appealing against the decision and, secondly, to enable the applicant to arm himself for the hearing of such appeal. The reasons need not be set out with the precision of a Court order nor need they necessarily contain any words of a technical nature nor refer in any formal way to any of the provisions of the Housing Acts. It was clear that the prose- cutor had at no time been in doubt as to what C.P.O. was referred to in the notice of refusal. If land is acquired for any one or more of the purposes set out in Section 55(3) of the Housing Act, 1966, then quite clearly the carrying into effect of that purpose either immediately or in the future affects in general terms the planning and development of an area and it followed from this that the compulsory acquisition of land by a Housing Authority pursuant to the Housing Act, 1966, was not a mere change of ownership. Application for absolute Order of Certiorari refused. The State (Patrick Sweeney) v. The Minister for the Environment and Limerick County Council - High Court (Finlay P.) - unreported - 12 February 1979. SALE OF LAND Action for Specific Performance — Discharge of Lis Pendens. The Defendant applied to have vacated a lis pendens registered by the Plaintiffs against lands the subject matter of an action by them for specific performance of an alleged contract, for the sale of lands. The Defendant also sought to have the Plaintiffs' proceedings struck out. The Defendant had put up lands for auction on the 18 July 1978 and the Plaintiffs gave a cheque for £95,000 by way of deposit but it was dishonoured and returned to the Defendant's solicitors by letter from their bank dated the 25 July 1978. The contract for sale contained the following provision :-

specified as payable by him shall constitute a breach of condition entitling the vendor to terminate the contract or to sue the purchaser for damages or both." On the 27 July 1978 the Plaintiffs' solicitor was notified, both by telephone and letter delivered that day, that if the deposit was not paid by 5 p.m. on that day the Defendant would terminate the contract. The P l a i n t i f f s' s o l i c i t or d id n o t communicate with the Defendant's solicitors either on the 27 or 28 July 1978 and the Defendant's solicitors by letter of the 28 July 1978 terminated the contract under the provisions of condition 3, (quoted above). The Plaintiffs' solicitor alleged that on the 31 July 1978 the Defendant's auctioneers agreed to waive the necessity for payment of the deposit until the 4 August 1978. This was disputed on behalf of the Defendants. On the 4 August 1978 the Plaintiffs' solicitor telephoned the auctioneers and advised them that the deposit was available. At a meeting held that day between the Plaintiffs' solicitor and the Defendant's solicitors a dispute arose as to the interest to accrue on the deposit and the Defendant's solicitors refused to accept the deposit or renew the agreement for sale. The Plaintiffs' solicitor tendered the deposit to the auctioneers who also refused to accept it. A plenary summons was issued on behalf of the Plaintiffs and a lis pendens registered against the property. On the 10 August 1978 the De f endan ts entered into a contract for the sale of the property to another purchaser for £946,000. It was argued on behalf of the P l a i n t i f fs t h at t he re was no jurisdiction to discharge a lis pendens without the consent of the Plaintiffs as it was argued that the Lis Pendens Act 1867 did not apply to Ireland and that in any event that Act only applied where an action was not being bona fide prosecuted and it was sought to make a distinction between not prosecuting an action bona fide or with diligence after it had been commenced and the bona fides of its institution. Held (McWilliams J.): having referred to McDonnell v. McDonnell 42 I.LkT.R. 212 and Giles v. Brady [19741 I.R. 402 and to an Order of the Supreme Court dated 28 July

1975 in a case of Glencourt Investments Limited (where the Supreme Court directed a lis pendens to be vacated apparently while an appeal to that Court was still pending) and having decided that the Lis Pendens Act 1867 (Section 2) and the Judgments Registry (Ireland) Act 1871 (Sec t i on 21) were applicable, that the High Court had jurisdiction to vacate a lis pendens without the consent of the person by whom it was registered. The Court further held that there was no distinction between commencing and continuing an action bona fide and was satisfied that the expression "bona fide prosecute" covered both the institution and the continuation of proceedings. It was ordered that the lis pendens be vacated. Patrick M. Culhane & Veronica B. Culhane v. David P. L. Hewson — The High Court (McWilliam J.) - unreported - 20 October 1978. WILL — ANIMUS TESTANDI Undue influence - whether a Will should be condemned on the grounds that it had been obtained by undue influence — burden of p r oo f. Knowledge and approval — whether it was established that the deceased knew and approved of the contents of a Will — burden of proof. Suspicious circumstances. The deceased, Patrick Kavanagh, died on 14 December, 1972, aged 75 years. A bachelor, he lived with his cousin, the Plaintiff, Annie Healy, up to the time of his death. He had carried on a successful dairy business in County Dublin until 1969 when he retired. He had been able to save quite a considerable sum of money and, in addition, he owned invest- ment property in Walkinstown and 12 acres of valuable land in Tallaght. The Plaintiff had come to live with the deceased and his sister from the age of 23, many years before his death. She helped in the dairy business and acted as housekeeper for the deceased until he died. She was never paid any wages. A strong bond of affection existed between the Plaintiff and the deceased. The second Defendant, Laurence Lyons, a cattle dealer, first got to know the deceased well after selling him a house in the early 1960's. He was a much younger man than the deceased. The deceased made a Will on 22 September, 1965, in which he

" 3 " The failure by the purchaser to pay in full the deposit hereinbefore