The Gazette 1980

GAZETTE

JULY-AUGUST

1980

is not there and then 'charged', that is to say, accused 'before' that Court.In my view this is the true meaning and effect of the words in question. Their purpose was to ensure that the person concerned would appear in court accused publicly of an offence — a right which he would otherwise have had under Section 15 of the Courts of Justice Act 1951 had he not been in detention". Conditional order of Certiorari refused. The State (Jeremiah Walsh) v. District Justice Cyril Maguire — Supreme Court (per Henchy J., with concurring judgments from O'Higgins C.J. and Griffin J.) - 14 February, 1979 — unreported. SALE OF LAND Land sold subject to right to re- acquire part in certain specified circumstances. Right to re-acquire upheld on subsequent resale of land to purchaser with prior notice of that right, even though that right was by then assigned to another party. Mr. Hayes the owner of lands at Crosshaven by contract dated 7 December 1972 agreed to sell a property called Crosshaven House and 15 acres to Mr. Flint (the first Defendant) subject to the right of Mr. Hayes or the actual developer of retained adjoining lands to re-acquire part of the sold property if it was necessary for planning purposes to demolish the building on that portion specified to be re-acquired. The relevant part of the special condition of the said contract provided that " . . . the vendor and the purchaser have agreed that the vendor may re- acquire the premises coloured blue on the map if it is not reasonably practicable for him or the actual developer of the said adjoining land to carry out the development without demolishing the said (House" . . . "whether for the purpose of erecting a roadway thereon or for the purpose of allowing a reasonable line of vision for an adjoining road at its junction with the existing (road)". The conveyance to Mr. Flint was completed on 8 October, 1973. Mr. Hayes contracted to sell 70 acres of the retained adjoining lands to Mr. Dovey and this was completed by conveyance dated 5th July 1974. Mr. Dovey subsequently conveyed these lands to Troika Limited ("Troika") but remained a director of

that company. On the 31st December 1974 Mr. Hayes assigned the right to re-acquire, to which Mr. Flint's land was subject, to Troika. By agreement in 1974 Mr. Flint agreed to sell his land to Mr. O'Hara (the Plaintiff) subject to the aforementioned right to re-acquire Troika and its related company, Hamburg Investment Company (the Third Defendant), began proceedings for specific performance requiring Mr. Flint to convey to them the necessary lands. By Consent Order of the High Court on 1 July 1975 Mr. Flint was restrained from selling the lands the subject of the right to re- acquire ("the reserved lands") until he conveyed them to Troika and the High Court declared that the agreement of 7 December 1972 in so far as it related to the reserved lands ought to be specifically performed. On 18 July 1979 the reserved lands were conveyed to Troika by Mr. Flint. Mr. O'Hara on hearing that Troika intended demolishing buildings on the re-acquired lands issued injunction proceedings, restraining Mr. Flint and Troika from such demolition. Mr. O'Hara's action was dismissed by the High Court (McWilliam J.) and Mr. O'Hara appealed to the Supreme Court. Held (per Kenny J.) that Mr. O'Hara had entered into his contract with Mr. Flint with full notice of the prior agreement of 7 December 1972 between Mr. Hayes and Mr. Flint, and of the special condition (above quoted) in that agreement; and that, furthermore, Mr. O'Hara's claim under his contract in 1974 was later in point of time to Troika's right arising under the agreement of 7 December 1972 and this right of Troika was perfected by the conveyance to Troika of the reserved lands by the conveyance of 18 July 1975. Accordingly the Appeal of Mr. O'Hara was dismissed. Note: In the early part of his judgment Kenny J. said: "The solution of the problems in this case is not made easier by the bad and confused drafting of the special conditions and by the fact that though the lands are referred to by reference to a map which has a number of colours on it, the copies of the maps furnished to us are photostat only and do not show any colours. I trust for the future that solicitors will remember that, when

preparing books of appeal for this Court, photostat copies of plans with colours on them are worthless". O'Hara v. Flint, Troika Limited and Hamburg Investment Company — Supreme Court, (per Kenny J. with Griffin and Parke JJ.) - 31 July 1979 - Unreported. Additional evidence from applicant/appellant not admissible In High Court on appeal from Controller of Patents, Designs and Trade Marks ("the Controller") under Section 25 of the Trade Marks Act 1963 ("the Act of 1963")- The High Court in such proceedings is an appellate Court only and not a Court of first instance. This was an appeal to the Supreme Court by the Controller following the decision of the trial judge in the High Court to allow an appeal against the decision of the Controller. The appeal to the High Court by the applicant pursuant to Section 57 of the Act of 1963 had been from a decision of the Controller who had not been satisfied that the applicant intended to use the trade mark ("Arby's") in the State as no sufficient evidence of user had been offered by the applicant and, as a result, the application had been refused pursuant to Sections 2 and 25 of the Act of 1963. In the High Court, the trial judge (Hamilton J.) also had not been satisfied on the materials before him that the applicant intended to use the trade mark in the State and he adjourned the hearing to allow the applicant to file a further affidavit. An affidavit by a Mr. Smaltz had then been filed and subsequently on the resumption of the hearing the trial judge had allowed the applicant's appeal against the Controller's decision. "Trade Mark" is defined in Section 2 of the Act of 1963 as meaning "a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark". Section 25(1) of the Act of 1963 provides that any person claiming to be the proprietor of a trade mark used or proposed to be used by him who is desirous of registering it must apply in writing to the Controller for registration. Thus, use of the trade mark or an intention to use it in the State must be proved before the Controller may register it. TRADE MARKS

Section 25(7) of the Act of 1963 provides: "Appeals under Section 57 of this Act against decisions of the Controller under this section shall be heard on the materials stated as aforesaid by the Controller, and no further grounds of objection to the acceptance of the application shall be allowed to be taken by the Controller,other than those so stated as