The Gazette 1985

JULY/AUGUST

1985

GAZETTE

tenants who occupied floors above the Ground Floor (3) the Lease under which the De f e ndan ts held the building imposed only a duty on the Defendant to share a service charge in relation to parts of the building used by the Defendants in common with others and accordingly because the Defendants had no use or enjoyment of the lifts and the Plaintiffs had always known this, the Defendants could not be held responsible for a Service Charge in relation to the lifts. The Court HELD:— The cost of replacing the two lifts, a portion of which was included in the service charge payable by the tenants to the Landlord, was clearly included in the 4th Schedule to the Lease and the Defendants were therefore liable on foot of this provision. It was irrelevant as to whether or not the Defendant Company actually used the lifts. The lifts were part of the overall services provided in the building and the tenants were bound by the covenant in the Lease to pay the rent reserved thereunder and the service charge referred to therein. Accordingly, the Defendant Company was liable for the sum attributable to the replacement of the lifts. The sum due was calculated and duly certified and notified to the Defendants in accordance with the terms of the Lease and the Plaintiff Company was at liberty to enter judgment against the Defendants for the entire sum and were entitled to claim interest at 11% pursuant to the Courts Act, 1981. The Norwich Union Life Insurance Company -v- Gestetner Duplicators Limited - High Court (perHamilton J.), 14 February, 1984 - unreported. Eric Brunker ROAD TRAFFIC ACT Drunken Driving — Section 49(3) 1978 Act — Dismissal by District Court — Case Stated — whether entry by Garda to Defendant's house lawful — whether subsequent evidence obtained admissible. The Defendant had a charge of driving with excess alcohol in his body dismissed in the District Court. The Defendant was not interviewed by the Gardai at the scene of the commission of the alleged offence but a short time later the Gardai called to his home and were admitted by the Defendant's sister. The Gardai were s u b s e q u e n t l y a d m i t t e d to t he D e f e n d a n t 's b e d r o om. Here the Defendant was arrested under Section 49(6) of the 1961 Act as amended. The Defendant's sister then resisted and obstructed the Gardai who eventually took the Defendant to the Garda Station. The Defendant co-operated in relation to the giving of a sample. The defence

or the corporation of a county or other borough, as the case may be, to exercise his or its functions under the Acts or this Act, on production of the officer's authorisation, if so required — (a) at all reasonable times enter premises at which any trade or business or any activity in connection with a trade or business is carried on and inspect the premises and any goods on the premises and, on paying or making tender of payment therefor, take any of the goods, (b) require any person who carries on such trade, business or a c t i v i ty and any person e m p l o y e d in c o n n e c t i on therewith to produce to the officer any books, documents or records relating to such trade, business or activity which are in that person's power or control and to give him such i n f o r m a t i on as he may reasonably require in regard to any entries in such books, documents and records, (c) inspect and copy or take extracts from such books, documents and records, (d) require any such person to give to the officer any information the officer may require in regard to the persons carrying on such trade, business or activity (including, in parti- cular, in the case of an u n i n c o r p o r a t ed b o dy of persons, information in regard to the membership thereof and of its committee of manage- ment or other controlling authority) or employed in connection therewith, (e) require any such person to give to the officer any other information which the officer may reasonably require in regard to such activity." The authorisation which was given to Mr. McClean was as follows:— "The Minister for Trade, Commerce & Tourism HEREBY AUTHORISES Robert P. McClean being a whole time Officer of the Minister to exercise the powers conferred by s.16 of the Consumer Information Act 1978, that is to say, the said authorised officer may for the purpose of obtaining any information which may be required in order to enable the Minister or the Director to exercise his function under the Merchandise Marks Act 1887 to 1978 or the Consumer Information Act, 1978, on production of the Of f i c e r 's a u t h o r i s a t i o n, if so required"

which was raised successfully on the Defendant's behalf before the District Justice was that the Gardai were not entitled to enter the Defendant's dwellinghouse without permission, and even if admitted by the Defendant or by some other person with authority to do so, they were bound to leave immediately on being requested to do so, otherwise they would become trespassers on the property. It was not contended that their original entry was unlawful, but it was submitted on behalf of the Defendant that once his sister opposed and resisted the arrest, this was tantamount to a revocation of the permission previously given to the Gardai to enter the premises and that they were then bound to leave the house without effecting the arrest. The District Justice dismissed the case and the Prosecution appealed by way of case stated to the High Court. The Court HELD that the Gardai having been lawfully admitted to the house and to the bedroom of the Defendant were at that stage entitled to exercise such powers of arrest vested in them by law and were not trespassers when they proceeded to do so. Therefore the arrest and everything that followed was lawful and the case should therefore be referred back to the District Justice to resume the hearing. Morris -v-Beardmore [1982] All E.R. 753 considered. The Director of Public Prosecutions -v- Martin Closkey - High Court (per O'Hanlon J.). 6 February, 1984. Eugene O'Sullivan CONSUMER INFORMATION ACT Functions of Director of Consumer Affairs — Authority of authorised official. Following a complaint made to the Director of Consumer Affairs by two customers of the first-named Defendant relating to the provision of a holiday apartment, the Director assigned one of his staff, Robert McClean, to investigate the complaint. The Defendants furnished Mr. McClean with all the information he required save information in respect of the payment by the first-named Defendant for the apartment in question. Mr. McLean was a "whole time officer of the Minister" and therefore a person entitled to be an authorised officer within the meaning of Section 16 of the Consumer Information Act sub-sections 2 and 3 of which read:— "(2) The Authorisation of an authorised officer shall indicate the matters in respect of which he may act under this Section. (3) An authorised officer may, for the purpose of obtaining any informa- tion which may be required in order to enable the Minister or the Director of the council of a county

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