The Gazette 1983

GAZETTE

NOVEMBER 1983

trustee for them. The proceedings were on the same day registered in the Land Registry as a Lis Pendens. Although informed of the purchase and transfer of the lands to the Plaintiffs the Defendants declined to vacate the Lis Pendens and proceedings were brought by the Plaintiffs in the High Court seeking an Order of the Court vacating same. The Plaintiffs were successful in the High Court and the Defendants appealed to the Supreme Court where it was HELD, upholding the decision of the High Court, that although the provisions of Section 51(2) of the Registration of Title Act 1964 expressly provide, in relation to transfers, that "until the transferee is registered as owner of the land transferred, that instrument shall not operate to transfer the land", that section of the Act deals only with the effect of the instrument of transfer as such. In the present case the Plaintiffs had not to rely merely on this instrument. They had purchased the lands pursuant to a contract and had paid over the full purchase money. On the execution of the transfer upon payment of the purchase money, the entire beneficial estate and interest in the lands passed to the Plaintiffs and the registered owner became a bare trustee for them. This had the effect of vesting in the Plaintiffs a right over the registered land such as was contemplated by Section 68 (2) of the Act. The Plaintiffs' right arising from their contract and payment of purchase money would not survive against a registered transferee of the lands or against a chargee for valuable consideration, but the Defendants were not such. A Lis Pendens is a burden registered on the folio under Section 69 of the Act. Section 74 of the Act gives priority to the burden registered first in time. This priority applies, however, only between burdens as such. The right of the Plaintiffs arising from the contract and the payment of the full purchase money could not have been registered as a burden under Section 69, and is therefore not affected by any priority given to such burdens under Section 74. The interest of the Plaintiffs was not subject to the Lis Pendens, which was ordered to be vacated. Bryan Coffey and Richard Moylan -v- Brunel Construction Company Limited (In Voluntary Liquidation) - (Supreme Court) (per O'Higgins C.J., Hederman J. concurring, and per Griffin J., Hederman J. concurring). 13 May, 1983.-Unreported. D. Seymour Cresswell

The action proceeded with the Attorney General as Plaintiff "at the relation of Francis X. Martin". Interim and interlocutory injunctions were granted to Fr. Martin in the High Court. The interlocutory injunction was discharged by the Supreme Court. The Supreme Court also dismissed the action as being unsustainable. Dublin Corporation claimed in these proceedings that the Attorney General should be held liable for the damage and loss sustained by the Corporation as a result of the grant of the interim and interlocutory injunctions. The orders of the High Court on the granting of the interim injunction on 10 January, 1979 referred to the usual undertaking as to costs in terms "as the plaintiff by his Counsel undertaking . . . ." This was repeated in subsequent orders. This undertaking related to the ordinary undertaking which a plaintiff seeking interim or interlocutory relief is expected to give in return for the exercise of the Court's discretion. The High Court dismissed the Corporation's claim against the Attorney General. The Corporation appealed to the Supreme Court. The Supreme Court held in dismissing the appeal that: 1. The relevant undertaking was not given by the Attorney General but by Fr. Martin, mistakenly described in the Orders in question as "the Plaintiff. 2. The giving of consent or fiat by the Attorney General to the institution of proceedings did not indicate any approval of the proceedings by the A t t o r n ey Ge n e r a l. In the circumstances there was no liability on the Attorney General. The Attorney General at the relation of Francis X. Martin -v- The Right Honour- able the Lord Mayor, Aldermen and Burgesses of Dublin and the Commis- sioners of Public Works in Ireland. Supreme Court (per O'Higgins C.J. Nem. diss). 16 February 1983. - Unreported. Eamonn G. Hall SALE OF LAND Registered lands — Registration of Transfer delayed — Registration of Lis Pendens — Registration of Title Act 1964. The Plaintiffs agreed on 8 November 1979 to purchase from Patrick Broughan certain registered lands for the sum of £340,000. The full purchase money was in due course paid to Mr. Broughan and on 7 December, 1979 he executed a transfer in favour of- the Plaintiffs. For various reasons registration of the transfer was delayed until 25 February, 1981. Earlier, on 9 May, 1980, the Defendants commenced proceedings against Mr. Broughan in the High Court seeking a declaration that he held the lands as

The Incorporated Law Society of Ireland

DINNER DANCE Blackball Place, Dublin 7.

FRIDAY, 18th NOVEMBER, 1983 Dinner 8.30 p.m. Dancing 10.00 p.m. - 2.00 a.m. Tickets: £18.00

Edited by Gary Byrne

Copies of judgments in the above cases are available to members on request from the Society's Library.

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