The Gazette 1983

GAZETTE

JULY/AUGUST

1983

Properties Dublin Corporation (5 February, 1982). In the instant case, the Court determined that the refusal was an invalid decision, but stated that "it was never the intention of the legislature that mistakes by Planning or Housing Authorities... would be used as a basis for abandoning the statutory procedures and seeking to use the Courts as some form of licensing or enabling Authority in a field in which the legisla- tive and executive organs of government have prime responsibility". Creedon -v- The Lord Mayor Aldermen and Burgesses of the City of Dublin. Supreme Court (per McCarthy J. Nem. Diss.) 11 February 1983 - Unreported. Patrick Fagan PROBATE Purported bequest of a farm by a Testatrix, who in fact held the entire shareholding in a private limited company which owned the property, should be regarded as a gift of the testatrix's shareholding in that company. This case involved the construction of a will, made in Germany and written in German, of a German national domiciled in Germany and, in particular, of a clause purporting to bequeath a farm in Ireland to the Protestant Church in Ireland. Before dealing with the problem of construction, the Court dealing with the proper law to be applied in construing the will decided that there was no necessity to choose between German and Irish law since, on the evidence of experts in German law, the primary principle of construction of Irish law that, whether or not the case contains a foreign element a will is to be construed in accordance with the intention of the testator to be gathered from the will, is also incorpor- ated in the German legal system. The main problem of construction arose by reason of the fact that the Testatrix was not the legal owner of the farm in Ireland, but that she or her nominees held the entire shareholding in a private limited company that owned three parcels of land in Co. Laois comprising in all 175 acres, together with buildings, livestock and farm machinery. The company's only other liquid assets at the date of the Testatrix's death were a small holding of bank stock and cash. The company had been formed or acquired by the Testatrix and her husband and its whole purpose was the acquisition, holding and running of the farm in question. The Court stated that the will appeared to have been prepared in haste and that the notary who drafted it could not have discussed with the Testatrix how she acquired the beneficial interest in the lands in Ireland, and neither could he have been conscious of the fact that the Limited) -v-

its decision within "the appropriate period" (as technically defined, but basically five weeks from receipt of the application). Section 10 of the 1969 Act covers the situation where Permissions are required under that Act and under the Local Government (Planning & Development) Act, 1963 ("the 1963 Act") and provides that, in such circumstances, "the appro- priate period" for the purposes of Section 26 (4) of the 1963 Act is, in effect, to be construed (in unappealed cases) as being the later to expire of (a) the period of two months stipulated in Section 26 (4) afore- said or (b) the period of five weeks beginning on the date on which the decision under the 1969 Act is given or is regarded as having been given. On 3 June, 1975 the Plaintiff applied to the Defendant for Permission under Section 4 of the 1969 Act, to use premises other than for human habitation in a submission providing for the construc- tion of a building with residential accommodation within the property. Permission was refused on 4 July, 1975 "for the reason that such change of use could result in a reduction in the supply of housing in the functional area of the Corporation". An application had already been made for a Permission under the 1963 Act at the time at which the Defendant had considered the foregoing submission. There was, accordingly, the prospect that, if the refusal of 4 July, 1975 were found to be invalid, the inter-action of the various provisions mentioned would be such that the Plaintiff would be regarded as having been awarded by default Permissions under the 1969 Act and the 1963 Act (without conditions). The Plaintiff could have appealed to the Minister against the refusal, but chose to pursue the matter by way of plenary summons claiming:— (a) a Declaration that the refusal was in conflict with the facts upon which it purported to have been based, was unreasonable, and contrary to natural justice. (b) an Order setting aside the refusal and declaring that the Plaintiff be deemed to have obtained a Permis- sion by default on the expiration of five weeks from 3 June, 1975. The Plaintiffs claim failed in the High Court, and her appeal against that decision was dismissed by the Supreme Court which HELD that, although the Defendant had reached an invalid decision in refusing the application under the 1969 Act, the equitable jurisdiction of the Courts should not be exercised to defeat the manifest purpose of the legis- lation, where there has been no allegation of impropriety or the like (save a mistake in law), and where a statutory remedy had not been availed of. In so deciding the Court followed the principles of its own findings in The State (Abenglen

legal owner of the lands was a limited company and not the Testatrix in her personal capacity. The Court also had regard to the fact that the expression * "farm" was used in the German text of the will, which the German legal experts in evidence agreed was one generally used in German only when referring to lands held abroad. It was HELD-.— 1) That the text of the will was loosely drawn and loosely expressed by the Testatrix and should be construed as referring to her property in Ireland; 2) That the intention of the Testatrix was to hand over the entire farming enterprise to the beneficiary named in the will (the identity of whom was originally required to be construed by the Court but was subsequently agreed by the parties to be the Lutheran Church, of which the Testatrix was a member); 3) That the gift of the farm in Ireland should be regarded as comprising a gift of the farming business which the Testatrix and her husband, and ultimately the Testatrix on her own, operated in Ireland through the medium of a limited company and that this gift would capture the entire shareholding of the Testatrix in the company of which she was the beneficial owner or over which she exercised a power of disposition at the date of her death. In the matter of the will ofAntonie Marie Bonnet, deceased, Robert William Roche Johnston -v- Heinz H. Langheld & Ors. - High Court (per O'Hanlon, J.) 18 November, 1982. - Unreported. Sarah Cox RELATOR ACTION — COSTS No Liability on the Attorney General for costs because he gave his flat for the institution of legal proceedings. Dublin Corporation (the first named Defendants) sought to have the Attorney General held liable to pay damages on an undertaking in the High Court. The Attorney General denied that he gave any such undertaking or had authorised any such undertaking. The proceedings arose from Dublin Corporation's decision to build municipal offices on the site of the early Viking settlement at Wood Quay, Dublin. Fr. Francis X. Martin sought an injunction restraining the Corporation from building on the site. Fr. Martin required the fiat of the Attorney General to institute proceedings. The fiat was given on the basis that Fr. Martin would defray the Attorney General's costs and expenses and on the understanding that the Attorney General expressed no opinion on the legal issues involved.

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