The Gazette 1984

GAZETTE

JULY/AUGUST

198

cases in respect of the practice of the Court of Chancery. The Court indicated that it had some hesitation in accepting that principles which evolved as to the manner in which a statutory jurisdiction might be exercised could survive the repeal of that Statute. Assuming, though not accepting, that such jurisdiction did exist it was necessarily subject in its exercise to the proper discretion of the Court. The Court held that the granting of an Order of Partition on the basis of the evidence available would be wholly inappropriate. Noting that the Plaintiff was in fact seeking an Order for sale in lieu of partition the Court stated that such an order will not be made until the Court sees good reason to the contrary. In the view of the Court good reason at the present time would properly have regard to the rights of the parties under the Family Home Protection Act, 1976. It had been argued that the FHP Act did not repeal the Partition Acts or any of them and it was contended therefore that if an Order for Partition was granted this dispensed with the necessity for procuring the consent of a spouse under that Act. The Court did not agree that this argument was well founded and held that the loss of the Statutory veto created by the Family Home Protection Act represented good reasons within the meaning of Section 4 of the Partition Act, 1868 and accordingly refused the applica- tion for an Order for sale in lieu of partition. O'D -v- O'D - High Court (perMurphy J.), 18 November, 1983 - unreported. John Buckley CONTRACT/CONVEYANCING Contract for Sale of Land — delay in completion — purchaser serves notice under Clause 28 of General Conditions — vendor fails to complete in accordance with same — application to determine whether contract validly rescinded. A Contract for the sale of three parcels of land was exempted dated 3 April, 1981. The Contract was in the standard Law Society form for Sale by Private Treaty. The acreage of each parcel was given in the Particulars and, if added together, comprised 51 acres 3 roods. In the final section of the Particulars however it was stated "the total acreage being sold under this Contract is believed to contain 54.2 acres statute measure or thereabouts". The Contract contained a Special Condition stating that no requisition or objection could be raised as to the accuracy of the area in sale. Although the Contract was dated 3 April, 1981 and the Contract was sent to the Vendor's Solicitor together with a cheque for the deposit on 8 April, 1981, it was not returned to the Purchaser until after the stated closing date of 1 May, 1981. At that time the Vendor's Solicitors

disclosed that one parcel of the land was still registered in the name of a person who had died in 1929. The Vendors stated that they would be attending to the recti- fication of the title to this parcel in the Land Registry. The Purchaser's reaction was that this would take some time. The Purchaser suggested that they proceed to complete the purchase of the other two parcels of land apportioning the purchase price. This offer was not taken up at the time by the Vendor's Solicitors. By letter of 15 July, 1981, the Purchaser's Solicitors complained that the acreage was not 54.2 acres as stated in the Particulars in the Contract. On 21 August, 1981, the Vendor's Solicitors replied drawing attention to the Special Condition in relation to area. Also, at some time during that Summer the Purchaser entered on the lands to save hay which he cut and baled and put into barns on the land. In September, 1981, the Purchaser's Solicitors wrote a letter invoking the provisions of Clause 28 of the General Conditions and calling on the Vendor to complete the sale on or before 19 October, 1981. In the same letter the Purchaser's Solicitors stated that the Purchaser was insisting that he be transferred 54.2 acres as stated in the Contract. When the Vendor failed to complete due to the fact that he was not able to show title to one parcel of the lands the Purchaser's Solicitors wrote a further letter on 20 October, 1981, requesting a return of the deposit. The instant proceedings were brought under the Vendor and Purchaser Act 1874 claiming a declaration that the Agreement for Sale had been validly rescinded. The Court HELD (a) The Purchaser was precluded from relying in any way upon the small discre- pancy in the area of the lands as the Purchaser, by adding together the acreage of the three parcels, would have arrived at the correct acreage and the Vendor could also rely on the Special Conditions. (b) The notice served on behalf of the Purchaser under Clause 28 of the Agree- ment for Sale was not a valid notice. Under Clause 28 of the General Condi- tions the party serving the notice must be then "able, ready and willing to complete the sale". The Purchaser was not so "able, ready and willing to complete the sale" in accordance with his obligations under the Contract as in the letter purpor- ting to invoke the provisions of Clause 28 he stated he would insist upon being transferred the full of 54.2 acres. (c) The notice under Clause 28 was also invalid because it was not expressed in "a clear and unequivocal manner" In the letter serving the notice the Purchaser's Solicitor had purported to reserve to the Purchaser the right to repudiate the Contract in full since there had been unreasonable delay on the part

of the Vendor. (d) The Court also rejected the Defendant's claim that, once the Purchaser had served a notice under Clause 28, he could only succeed in his claim that the Contract was rescinded if the notice under Clause 28 had been validly served. Reference was made to Wood and Others -v- Mackenzie Hill Limited [1975] 2 All ER 170. Nevertheless the Court held that the rather casual approach adopted by both parties to the time for closing did not therefore amount to such an unreasonable delay on the part of the Vendor to justify the Purchaser rescinding on those grounds. Also, that the Purchaser's offer to complete the purchase of two out of the three parcels of land had never been withdrawn and therefore was open to acceptance by the Vendor after service of the purported notice under Clause 28 of the Contract. Martin A. Commane -v- Johanna Walsh - High Court (per O'Hanlon J.), 2 May, 1983 - unreported. Colin Keane LICENSING Bona fide sale of licensed premises — where applicant for transfer of licence is a limited liability company, there is no obligation to record on the licence a conviction recorded against persons who are directors and shareholders of the company when acting as owners and managers of difTerent licensed business. At the annual licensing District Court in Dublin in September 1982, the President stated a case to the High Court in relation to an application by Hesketh Investments Limited, a limited liability company, for a Certificate of Transfer of the Publican's On License attaching to the Ivy Leaf Bar, Old County Road, Crumlin. An interim transfer of the licence had already been granted to the company on 10 March 1982. Hesketh Investments Limited was incorporated in November, 1980 and its only shareholders and directors were Paul Ryan and Terence Dunleavy. The company's objects were altered by special resolution in December, 1981, to enable it to carry on the business of licensed vintner and publican. The company, in fact, had never traded. Messrs. Ryan and Dunleavy had previously carried on the business of publicans at the Countess Bar in Townsend Street, Dublin and had been joint holders of the intoxicating liquor on licence attaching to that business. In July 1981, they were convicted and fined £20.00 for permitting persons to be on the premises during prohibited hours contrary to Section 2 of the Intoxicating Liquor Act, 1927. Again in November, 1981, they were convicted and fined £40.00 for permitting persons to be on the premises during prohibited hours and they were convicted and fined £40.00 for permitting consumption of intoxicating liquor on the same occasion, this

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