The Gazette 1980

GAZETTE

1980

JULY-AUGUST

January 1978 until the date of the judgment. 3. That the Defendant was respon- sible for the damage to the house caused by the hard winter of early 1979 in so far as this was due to his want of reasonable care; but that the Court had been given no evidence whatsoever as to the position in that respect. Derek Treacy v. Dwyer Nolan Dev- elopments Limited — High Court (per McWilliam J.) - 31 October, 1979 — unreported. CRIMINAL LAW — APPEAL An application for a certificate of leave to appeal to the Court of Criminal Appeal on the grounds that certain statements and certain parts of statements ought not to have been admitted by the trial judge — Criminal Justice (Evidence) Act 1924, Section 1 (F). The Appellants, W.T.M. and B.O'S., had been convicted at a joint trial in the Central Criminal Court with the murder of one J.H. In the course of their trial, certain statements made by them had been admitted into evidence. Counsel for the appellants had objected to the admission of these statements on several grounds at the trial. At the hearing of the application for a Certificate for leave to appeal to the Court of Criminal Appeal, their Counsel argued that the statements ought not to have been admitted. Their main ground for this contention was that the appellants had not voluntarily gone to the station where they made their statements, but, in fact, had been arrested, and were in custody when they made their written statements, and that they ought to have been brought before the District Court prior to the time that they made their statements. At the trial, there had been conflict of evidence between the Gardai and the accused. Held: (per Finlay P.) (1) That the function of the Court of

Defendant in May 1978 confirming completion, correspondence passed between the parties wherein the Plain- tiff claimed that the house was defective and that he required inspec- tion of it and the Defendant claimed that the house was completed and that he required closing and interest at 20% on the balance of the pur- chase price payable from November 1977. The Plaintiff did not make an appointment to inspect but when the Defendant furnished the architect's certificate in May 1978 the Plaintiff agreed to complete and pay interest from that date but the Defendant insisted upon full payment of interest from that date at 20% from November 1977. On 25 June 1978 the Plaintiff put the balance of the pur- chase money on joint deposit receipt in the names of the Plaintiff and the Defendant and he commenced pro- ceedings for specific performance on 3 August 1978. On the evidence before him the Court (McWilliam J.) was satisfied that the premises were not completed in October or November 1977 but accepted that the defects were not of a serious nature and that they had probably been remedied by the middle of December 1977 when the Plaintiff examined the house with his qualified friend or relative. The judge commented that it was significant that this qualified friend did not furnish a written report and did not give evidence. It was accepted by the Defendant that if interest was payable by the Plaintiff then, for con- venience, since no definite dates in December 1977 had been estab- lished, the premises would be held to have been completed on 1 January 1978. The Defendant also accepted that the Plaintiff was entitled to his decree for Specific Performance and the Court made no decision in that respect. Held (per McWilliam J.): 1. That the Defendant (builder) was entitled to interest at 20% from 1 January 1978 until 25 June 1978 when the Plaintiff placed the balance of the purchase money on joint deposit receipt but that after the 25 June 1978 the Defendant was entitled only to the interest earned on the joint deposit receipt. 2. That the Plaintiff was not en- titled to any damages for being kept out of the house from 1

RECENT IRISH CASES

CONTRACT — SPECIFIC PERFORMANCE — INTEREST Plaintiff purchaser liable to Defendant Builder for interest on balance of purchase money at con- tract rate from date defects in new house remedied up to date when pur- chaser put balance on joint deposit receipt, and after that date builder only entitled to the interest on the deposit receipt. The Plaintiff (purchaser) signed a contract with the Defendant (builder) on 6 September 1977 which provided that the Defendant would complete a house and sell it to the Plaintiff by 29 September 1977 but that the Defendant would not be liable for any delay. The contract also provided that any dispute relating to work in progress or completion would be decided by the Defendant's architect whose decision would be final and binding; and that if the Plaintiff did not pay for the house on final completion the contract pro- vided that an interest rate of 20% would be charged from two weeks after the date of (final) completion when the balance of the purchase price would be payable. On 27 October 1977 the Defendant told told the Plaintiff that the house was ready, but the Plaintiff did not accept this and left with the Defendant a list of defects which was confirmed by letter of 27 November 1977 fur- nished to the Defendant's solicitors. The Defendant accepted that there were defects at this stage but said that they were not of a serious nature and claimed that they had all been remedied by early December 1977. The Plaintiff attended the premises with a qualified person (who ap- peared to be a friend or relative of the Plaintiff), in the middle of December 1977 and an inspection was carried out but no report of this inspection was furnished by the Plaintiff to the Defendant though the inspection was referred to in a letter from the Plain- tiffs solicitor of 24th January 1978. Between the date of that inspection by the Plaintiff and the issue of an architect's certificate by the

Criminal Appeal on issues such as this was set out by the C.C.A. in The People v. Madden 119771 I.R. 336 at p. 340 (per O'Hig- gins C.J.) " . . . it would seem to be the function of this Court to con- sider the conduct of the Trial as disclosed in the sten- ographer's report to determine whether or not the trial was satisfactory in the sense of