The Gazette 1981

GAZETTE

implement the conditions of the loan approval, to avail of the opportunity which became available to them for this purpose, and thereby to seek or obtain approval for the loan according to the obligations under Clause 4 of the Special Conditions. The Court found that the conditions of the loan approval were not unreasonable and that they were as should have been in the contemplation of the Plaintiffs acting reasonably. Plaintiffs claim failed and order made declaring that the Defendant had validly forfeited the £4000 deposit. Brian Draisey and Another v. Fitzpatrick High Court (per Ellis J.) 10 December 1980 unreported. MISREPRESENTATION Principles necessary to establish liability for negligent or non- fraudulent misrepresentation laid down — dismissal of claim on the grounds that the Plaintiff was not the person to whom representations were made. The Plaintiff claimed that in March 1973 he sought the services of the Defendants, as auctioneers, to advise him on the purchase of a property suitable as a residence which would be a sound investment available for immediate re-sale at a profit. He alleged that the Defendants introduced him to a property at Celbridge, County Kildare which he was induced to purchase for the price of £70,000 on the Defendants representation that it was a first-class investment suitable for his purpose and that it could be re-sold at a substantial profit. The property was eventually sold by the Plaintiff in November 1975 for £50,000. The Defendants denied that they were retained by the Plaintiff as his auctioneers at the time and alleged that they were, in fact, instructed by the Plaintiffs brother. They alleged that they did not give any particulars or advice or make any representations to the Plaintiff who did not come into the picture until December 1973 when his name was substituted for that of his brother in the contract on the execution thereof. The Plaintiffs brother did not give evidence and no

note or memorandum of any agreement between the Plaintiff and his brother was produced in evidence. The Court referred to the cases of Hedley Byrne & Company v. Heller 119631 2 All E.R. 575 and 11964] A.C. 465, Esso Petroleum Company v. Mardon [1976] 2 W.L.R., 583, Derry v. Peak (14 App. Cas. 337) and Securities Trust Limited v. Hugh Moore and Alesander Limited 11964] I.R. 417. In the course of his judgment Doyle J. adopted the principles laid down by Davitt P. in the last mentioned case that in order to establish liability for negligent or non fraudulent misrepresentation giving rise to action:— 1. There must first of all be a person conveying the information or the misrepresentation relied upon. 2. There must be a person to whom that information is intended to be conveyed or to whom it might reasonably be expected that the information would be conveyed, and 3. That person must act upon such information or representation to his detriment so as to show that he is entitled to damages. Held (per Doyle J.) dismissing the Plaintiffs claim, that on the evidence furnished to the Court the Plaintiff had personally received no representations from the Defendants upon which he acted to his detriment or suffered damage and that any liability on the part of the Defendants would not extend to the Plaintiff, even if the Plaintiff was aware of the nature of his brother's transactions with the Defendants in relation to the property. PJ.D. Stafford v. Denis Mahony & Others — High Court (per Doyle J.) — 21 March 1980 unreported.

unreasonable and also that the requirements of general condition (a) were impossible to fulfil and incapable of performance within the stated period of 40 days. For these reasons they refused to accept the terms on which the I.P.B.S. loan was granted and relied on Clause 4 in their refusal to complete the sale with the Vendor. The Plaintiff claimed that it was an implied term of Clause 4 of the Special Conditions that the loan approval should have been granted on reasonable terms but it was not, for the above reasons. The Defendants claimed that the terms of Clause 4 of the contract were fully, reasonably and adequately satisfied by the issue of the loan approval by the I.P.B.S. and that the Plaintiffs should have accepted the loan offered, and should have completed the sale. The Defendant's solicitor, having served a completioin notice on the Plaintiffs, subsequently notified the Plaintiffs solicitor in writing that the Plaintiff's deposit of £4000 was then absolutely forfeited to the Defendant. The Plaintiffs then issued proceedings for the return of the deposit. Held (per Ellis J.), having considered Rooney v. Byrne [ 1933] I.R. 609 and Lee Parker v. Izzet( No. 2) [1979] 1 W.L.R. 775 and Richard West & Partners (Inverness) Limited and Anor. v. Dick [1969J I All E.R. 943, and following Rooney v. Byrne: (1) That Clause 4 was subject to the implied terms that the conditions of the loan approval mentioned therein were and are subject to the implied term that they should be reasonable, and that these conditions should reasonably have been within the contemplation of the parties when the contract was made; and (2) That Clause 4 should be subject to the further implied term that the Plaintiffs were under the obligation at all times to act reasonably and to take and make all reasonable steps and efforts to fulfil and carry out the conditions of the loan approval; and that onus of proof was on the Plaintiff purchaser to show that the conditions of the loan approval were unreasonable, and that the Plaintiffs had acted reasonably and had made reasonable efforts to fulfil and carry out the conditions of the loan approval. Having heard the evidence on the facts the Court concluded that it indicated an unreasonable lack of effort and desire by the Plaintiffs to

Summaries of Judgments prepared by: John F. Buckley, Ian Scott, Sarah Cox and edited byGary V. Byrne.

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