The Gazette 1984

JULY/AUGUST 1984

GAZETTE

parties as to essential elements of the alleged contract or contracts; (2) that it was true to say that the contract or contracts in issue would not be enforceable by action unless, for the purposes of Section 4 of the Sale of Goods Act 1893, Tradax had accepted part of the goods sold and actually received the same, or there existed a sufficient note or memorandum in writing of the alleged contract or contracts signed by I.G.B. or their agent on their behalf. Gannon J. in the High Court had drawn attention to a letter of 21 April 1978 written by the Secretary of the I.G.B., who is also the Solicitor of the latter, to Tradax purporting to repudiate the alleged contract or contracts. The Secretary had in the first paragraph of this letter referred to the telex from Tradax to I.G.B. dated 24 March 1978 "confirming the agreed terms of the above-mentioned two contracts for 20,000 tonnes and 5,000 tonnes respectively of Irish Feeding Barley and which provided for payment by letter of credit maturing on 1 May 1978". Gannon J. had concluded that this letter coupled with the telex of 24 March 1978 constituted a sufficient note or memorandum of the contract(s) made on 23 March 1978. The majority of the Supreme Court held that Gannon J. had been correct in so holding. Griffin J. and Henchy J. noted, furthermore, that even if no sufficient note or memorandum had come into existence the requirements of the above-mentioned Section 4 had been complied with because Tradax had accepted and received part of the goods amounting to 1,871 tonnes to the value of £180,560; (3) that (McCarthy J. dissenting) the contention put forward by I.G.B. that the letter or letters of credit ought to have been opened or established at the latest, by the first day of the contractual delivery period, (which in this case was 1 April 1978), and that failure on the part of Tradax in this regard resulted in a breach of a fundamental term of the contract entitling I.G.B. to repudiate same, was to be rejected. O'Higgins C.J. summarised the position thus: "Although the persons negotiating the terms of the contract were not familiar with all the technicalities of documentary credit, they were of one mind that payment for the barley purchased was to be by a letter of credit for each lot, maturing on 1 May 1978. This date was specified notwith- standing that the shippingperiodfor the shipments from New Ross was to run from 1 April 1978 until 30 June 1978. This case is therefore to be distinguished from the run of cases of sales based on payment by documentary credit, where the furnishing by the buyer of the documentary credit is a precondition of the shipping or delivery of the goods by the seller." The cases that had been cited by I.G.B.

in support of their argument were the English cases of Pavia and Company S.P.A. -v- Thurman-Neilsen [1952] Q.B. 84; Sinason-Feicher Inter-American Grain Corporation -v- Oilcakes and Oilseeds Trading Co. [1954] I.W.L.R. and lan Stach Ltd. -v- Baker Bosely Ltd. [1958] I All ER 542.0'Higgins C.J. opined that the facts of the latter mentioned cases were distinguishable from those of the present case in that they all involved transactions relating to international trade and envisaged a payment machinery operating over the whole of a shipping period. The machinery for payment in the present case, by way of contrast, operated "on a single day with a single payment and it is specifically recognised that it cannot operate for the first month of the delivery or shipping period". The majority of the Supreme Court (McCarthy J. dissenting) were not prepared to imply a term that the letter of credit of the kind actually opened by Tradax on 24 April 1978 ought to have been opened by 1 April (the commencement of the drawing period). Not only would it be impracti- cable for the parties to have agreed to such a term but the subsequent actions and conduct of I.G.B. and Tradax belied the existence of a common intention that such a term would implicitly form part of the contractual arrangement which they had entered into. The absence of such a term did not, in any event, affect the business efficacy of the transaction. (The Moorcock Case [1889] 14 P.D. 64, Shirlaw -v- Southern Foundries [1939] 2 All ER 124, Reigate -v- Union Manufacturing Company (Ramsbottom) [1918] I.K.B. 592, and Ward -v- Spivack Ltd. [1957] L.R. 40 considered) Higgins C.J. concluded that all that could be implied into the contractual arrangement entered into in the present case was that Mr. Fitzpatrick, the Managing Director of Tradax, "on behalf of his company should take reasonable and proper steps to finance the opening of a letter of credit which would mature for payment of £2.4 million on 1 May. If he had been dilatory in securing the transfer of funds to his own company or otherwise acted as if the contractual obligation would not be honoured, there might have been grounds for complaint by the Defendants". I.G.B. were accordingly not justified in cancelling their contract with Tradax on 21 April 1978. McCarthy J., in his dissenting judgment, considered that the crucial factor in the circumstances was not May 1, the date of actual payment, but rather that I.G.B. could look forward to such payment on that date. If it were the situation that the letter of credit was merely to be opened on that date, and opening requires notification to the drawer, then this would mean that the documentary credit could not in theory have been drawn upon, at the start of banking hours on that day. McCarthy J., consequently considered that, to the

extent that it be accepted that a valid contract was entered into on 23 March 1978, a term necessarily implied therein was that a letter of credit or letters of credit . . . would be opened at a bank in Ireland before the 1st day of drawing down fromthe Edenderry Store or not less than five days before the date of arrival of a ship at New Ross for the f.o.b. transaction, whichever date be the earlier. McCarthy J. thus reached the conclusion that as Tradax had failed to comply with the above mentioned term which he considered to be fundamental to the contract, I.G.B. had been justified in sending a letter on 21 April 1978 repudiating the earlier contract of 23 March 1978. Tradax Ireland Limited -v- Irish Grain Board Limited - Supreme Court, 18 November 1983 [1984] ILRM 471. Edwina Dunn No intention to deliberately flout the Planning Law in the erection of a galvanised shed — no mandatory injunction granted for the removal of the structure — bona flde effort made by Defendant to eliminate nuisance — Plaintiff entitled to damages for nuisance by noise and dust. The Plaintiff was an elderly lady living on her own in an attractive residence in Navan. Her next-door-neighbour set about erecting a structure along the line of the dividing wall of the two back gardens and within hours a massive corrugated iron workshop was obscuring the landscape at the back of her house. The Plaintiff sought interlocutory relief and by Order of the High Court, dated 8 October, 1979, an undertaking on the part of the second-named Defendant, Patrick Reilly, was given whereby he undertook not to do any further building work and not to use any of the new buildings and premises for his joinery business but remaining at liberty to use the old buildings for such joinery business. When proceedings were commenced against him he applied for permission to build and this Application was rejected by the Local Urban District Council but, on Appeal to An Bord Pleanala, permission was granted subject to conditions requiring the Defendant to reduce the length of the building by 15'/ 2 feet so as to set it back some distance from the Plaintiffs premises and also requiring steps to be taken to suppress the level of dust and noise emanating from the structure. One of the most effective ways of complying with the requirements of An Bord Pleanala with regard to noise and dust was to substitute or superimpose blockwork in place of or over the PLANNING/PRESCRIPTIVE RIGHTS/NUISANCE SUMMARY OF DECISION

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