The Gazette 1984

GAZETTE

MAY 1984

laneway. Proceedings were not issued until December 1979, the Plaintiff claiming inter alia (1) injunctions to restrain the Defendant from obstructing the laneway and derogating from his grant, (2) damages and (3) interest. The Defendant raised two basic defences (1) lawful behaviour and the fact that the Plaintiff did have limited access and (2) that the restriction being sought should have been reserved by the Plaintiff in the Contract. These defences failed. The doctrine of derogation of grant imposes implied obligations on parties to a Contract. It can impose on a Grantor, where he has sold part of his land, restrictions on the user of the land retained by him but the doctrine is limited to the presumed intention of the parties and cannot cover situations not anticipated. It was held following the test laid down in Browne -v- Flower [1911] ICh. 219 which was subsequently approved by the English Court of Appeal that the Defendant clearly derogated from his grant and was in breach of implied obligations imposed on him by the Contract for Sale in that 1. the site granted by the Defendant to the Plaintiff had been rendered materially less fit for the particular purpose for which it was acquired. The site had been acquired for the commercial development of five houses. If the Council would not take the laneway in charge the site may still be capable of development, but not along the commercial lines originally intended. 2. By reason of the knowledge imputed to the Defendant he should have anticipated the result of his conduct. The Defendant knew the site was acquired for development and he knew the importance of having the laneway taken in charge. As damages the Plaintiff claimed the profits which he would have earned if he had been able to develop the site without delay. HELD: by reason of the Plaintiff now being in the same position as he would have been but for the actions of the Defendant damages would be assessed taking into account the loss to the Plaintiff of the cost of financing (1) the purchase of the site for the period he was unable to use same and (2) the limited development of the site. As to interest it was held that there had been unnecessary delay between March 1979 and December 1979 in issuing proceedings and though the Defence had been delivered in July 1980 the reply was not delivered until October 1980 and the matter was not set down until July 1981. This was calculated as being a delay of at least one year and the allowance of interest was restricted accordingly. Anthony Cornell -v- Thomas Joseph

O'Malley - High Court (per Barron J.) 28 July, 1983 - unreported. John P. O'Malley

Recent Irish Cases

CONVEYANCING Partition Acts — jurisdiction of the court to order partition — effect of the Family Home Protection Act 1976. The marriage between the Plaintiff and the Defendant had run into difficulties and the Plaintiff instituted proceedings in the Circuit Court claiming a sale of the family home in lieu of partition pursuant to the Partition Acts 1868-1876. The President of the Circuit Court did not order a sale nor dispense with the Defendants consent in the event of a sale taking place. Instead he made an Order of Partition and adjourned the balance of the proceedings with liberty to re-enter. The Plaintiff appealed to the High Court and it was argued on his behalf that as a joint tenant he was entitled as a right to a decree for partition or that in any event it was a suit where in the words of Section 4 of the Partition Act 1868 — "A decree for Partition might have been made". That being so, then as the Plaintiff was entitled to an interest in the property to the extent of one moiety he was entitled as of right to the sale of the property unless the Court saw good reason to the contrary. The Court noted that joint tenants and tenants in common did not have the right at Common Law to compel a partition and that the right of the joint tenant to compel partition was conferred by a 1542 Statute entitled "An Act for Joint Tenants". Prior to the passing of the 1868 Partition Act the Courts did not have jurisdiction to direct a sale of property held in tenancy in Common and the only remedy was one of partition. The Court further noted that there was authority for the proposition that the granting of a decree of partition was not an absolute right of the parties nor a mere formality of the Courts but that the making of the Order required the Court to be satisfied by evidence that it was a proper case to make the particular order sought. The Court held that as no evidence was produced before the Court — and no enquiry sought or directed — it would be inappropriate to make an absolute order for partition and on that ground alone it would set aside the Order of the President of the Circuit Court. The Court, however, noted that the matter was more complex. The Plaintiff had relied on the 1542 Act which in fact was repealed by the Statute Law Revision (Pre-Union Irish Statutes) Act, 1962. Counsel for the Plaintiff had argued that the jurisdiction to decree partition — as opposed to a sale in lieu of partition — was now exerciseable in accordance with the principles established in the decided

Edited by Gary Byrne, Solicitor

CONTRACT Breach of Contract — derogation from grant — specific performance — assess- ment of damages — interest. The Plaintiff agreed to purchase a five acre site from the Defendant with Outline Planning Permission for five houses in May 1973. The site formed part of the Defendant's land. Access to the site was over a private laneway through the lands of a neighbouring convent and then through the Defendant's lands, past the site in question onto the Defendant's residence. The site was bounded on one side by the River Boyne. The Defendant led the Plaintiff to believe that the laneway would be taken in charge by the County Council. The Plaintiff obtained full planning permission in July 1973, Condition No. 1 specifying "that the water supply be taken from the convent side and not across the Boyne". The Defendant refused to complete the sale. The Plaintiff sought an Order for specific perfor- mance. A compromise was reached in November 1975 establishing the May 1973 Agreement with variations. Again the Defendant refused to complete the sale. In January 1977 the Defendant placed gates across the laneway to prevent uninterrupted access to the site and prevent development and erected a notice to the effect that the gates were to be kept closed; later the Defendant told the Plaintiff that he would not allow a water main to the site over his land. In further proceedings the Defendant was again ordered to complete the sale and the Plaintiff also obtained on Order directing the gates to be kept open and declaring that the Plaintiff be entitled to have water brought to the site. At the same time as an unsuccessful appeal against this decision by the Defendant to the Supreme Court, in February 1979, the County Council indicated that they could not take in charge a laneway with obstructions. The Defendant then erected a concrete wall across the laneway. In March 1979, the Plaintiffs Solicitors threatened further proceedings unless all obstructions were removed from the

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