The Gazette 1983

SEPTEMBER 1983

GAZETTE

parties had agreed to go to arbitration on the question of whether Condition 21 applied to the case and, if so, what amount of compensation, if any, the Plaintiffs were entitled to. The matter before the Court was to determine: (a)Whether, if the Plaintiffs were successful in making a claim for compensation under Condition 21, they were entitled to receive such compensation by way of an abatement of the purchase price. (b)Whether, the Defendants were entitled to insist upon the closing of the sale before determination by arbitration of the dispute as to compensation and the amount of same and (c)Whether, if the answer to (b) was in the negative, the Defendants were entitled to insist upon closing the sale prior to the arbitration, with the Defendants agreeing to hold on joint deposit the amount claimed by the Plaintiffs pending the outcome of the arbitration. On these points the Court held: (a) that if the Plaintiffs were entitled to compensation at all theywere entitled to it out of the purchase money (b) that the Plaintiffs could not be forced to close until such time as the amount of compensation, if any, and therefore the amount of the balance of the purchase price had been ascertained (c) while in many cases it would be sensible for the parties to enter into a supplementary agreement and to close the sale retaining the amount of the compensation on joint deposit, the Court could not compel the Plaintiffs to close the sale before the question of compensation had been determined. Valentine Keating, Arthur Molloy, George Roe -v- The Governor and Company of the Bank of Ireland Regin- ald Brentland and Heather King - High Court (per Barrington J.) 30 July 1982. - Unreported. Colin Keane CONVEYANCING Assignment ofFamily Home • No consent form Spouse • entitlement of Spouse - Rights of Purchaser. The Plaintiff (Margaret Weir) married Terence Weir the legal owner of the house the subject matter of these proceedings on 5 July, 1961. In October 1973 Mrs. Weir left the house with her four children to reside in a Dublin Cor- poration dwelling. All expenses including rent were borne by MrsWeir. On 20 November, 1974 Mr. & Mrs. Weir entered into a Seperation Agreement which was silent as to the Family Home. XXX

legislature, the judiciary and the executive. The Section accordingly prohibits actions which prevent or obstruct the wide range of activities legislative, judicial or executive which are involved in the government or the governing of the State. Further it applies to the prevention or obstruction (by some violent means) of the exercise or performence of any individual legislator, Judge, member of the executive or officer or employee of the State of his functions, powers or duties. It is not even expressly required that such individual should have been so prevented or obstructed in the course of those duties, or indeed that the obstruction should have taken place with that or any other particular intent. However, the act complained of must constitute an attack on the State through one of its constitutional organs. As Kehoe had attacked an officer who was leading a substantial force of Gardai in the clear performance of a duty imposed by law on the Government to protect a foreign mission, he was guilty of an offence under Section 7. The appeal was accordingly dismissed. D. P. P. -v- Patrick J. Kehoe Court of CriminalAppeal (perMcCarthy J. Nem. Diss.) 7 February 1983 —Unreported. Michael Staines CONVEYANCING Contrast - Misdescription of Property - EfTect of General Condition 21 of 1978 Edition of General Conditions of Sale of the Incorporated Law Society - Vendor could not compel Purchaser to complete purchase until amount of compensation was determined In accordance with sub-section (2) of General Condition 21 of Contract. The Plaintiffs (the Purchasers) contracted to purchase certain land for £306,000 from the Defendants (the Vendors). The Plaintiffs instituted proceedings against the Defendants alleging that they entered into the sale on the faith of certain representations made to themby the Defendants or their agents which they claimed were false and misleading. They claimed that they were entitled to relief under condition 21 of the Contract for Sale being a claim for compensation for the mis- description. They also claimed specific performance of the contract with an abatement of £100,000 of the purchase price as compensation. The Defendants denied all allegations of mis-represent- ation and countejclaimed for specific performance of the Contract. The

On 2 August, 1976 Terence Weir entered into a written agreement to sell his leasehold interest in the premises to the defendant, Mrs. Sandra Somers. The sale was closed relying on a faulty declaration under the Family Home Protection Act prepared by the purchaser's solicitor without any real enquiry as to the facts or without any in- spection of the separation agreement. Terence Weir executed the statutory declaration thus prepared and the sale was closed on 17 August, 1976. In April, 1977 Mrs. Somers agreed to sell the premises. The Purchaser required proof that the provisions of Section 3 of the Family Home Protect- ion Act, 1976 had not been breached and accordingly Mrs. Weir's retrospective consent in writing to the Assignment to Mrs Somers was required. This was refused by Mrs. Weir who claimed she was entitled to a pro- prietary interest in the contract premises. Mrs. Somers instituted High Court proceedings seeking an order under Section 4 of the 1976 Act dispens- ing with the Defendant's consent to the Assignment and such Order was granted by the High Court. MrsWeir appealed to the Supreme Court and the decision of the High Court was reversed. The Supreme Court declared the purported conveyance of the Family Home to Mrs Somers to be void. Further proceedings were brought in the High Court byMrs. Weir against her husband and on foot of that claim it was declared: (a) that the premises 111, Maryfield Cresent, Artane, in the County of Dublin was a Family Home as between the Mr and Mrs Weir and (b) that the Mrs Weir was entitled to a half share in the leasehold interest in the premises. This order did not purport to vest any legal estate in Mrs. Weir who by ordinary civil bill initiated the present proceedings claiming an injunction to restrain Mrs. Somers or any other occupiers of the relevant premises from remaining on or continuing in occupation of them as a dwelling. These Proceedings came before the Circuit Court Judge on 12 February 1982 Who stated a case for the High Court. The case stated was signed/Jby the Judge on the 2nd of April, 1982 but for no app- arent reason was not lodged .in the Supreme Court office until 4 October, 1982. It was argued in the High Court on 21 February, 1983.. The Family Home Protection Act, 1976 was reviewed and it was noted that the Act came into force on 12 July, 1976 five weeks before the execution of the void Assignement on 17 of August, 1976. Sections 3,4 and 5 were quoted in particular with reference to the present case and related proceedings and it was concluded that in the view of the court