The Gazette 1991

GAZETTE

JULY/AUGUST

1991

application to the instant case since liabilty in equity under the rule in Tulk -v- Moxhay was quite distinct from the position of parties suing in the position of landlord and tenant; (5) the defendant was entitled to rely on the wide terms of s.28 of the 1978 Act, which referred to the extinguishing of 'all covenants' on the purchase of the fee simple, in arguing that the covenant had been extinguished in.the instant case; and while this might have resulted in the extinguishment of property rights, this did not necessarily render unconstitutional s.28 of 1978 'Act, and in the absence of argu- ments from the Attorney General the court would not adjudicate on the constitutional issua East Donegal Co-Op Ltd-v- Attorney General [1970] IR 317 discussed. D. -V- D. HIGH COURT 19 DECEMBER 1989 Family law — Maintenance agreement — Provision f or variation upwarda — App l i c a t i on to vary downwa r da — Whether court may make such order — Family Law (Maintenance of Spouses and Children) Act 1976, s..5, 8. The parties had entered into a separation agreement, which included a clause pro- viding for increases in the maintenance payable by the husband in accordance with inflation. The agreement was made a rule of Court under s.8 of the 1976 Act. The husband applied to Court for an order that the maintenance payments be adjusted downwards on the ground that his financial circumstances had worsened considerably since the agreement was entered into. HELD by Barron J: the husband was entitled to a variation downwards in the sum payable to the wife, and althought there appeared to be a lacuna in the 1976 Act in this respect, the ability of the husband to apply for such variation was consistent with the right to apply for a maintenance agreement under s.5 of the 1976 Act and there was therefore mutuality of rights between the parties. Dicta in H.D. -v- RD. (Supreme Court, 8 May 1978) applied. DUNLEA -V- NISSAN (IRL) LTD HIGH COURT 24 MAY 1990 Injunction — Interlocutory — Stateable caee — Balance of convenience — Franchise agreement — Termination — European Communities regulation — Directive on Exclusive Dealing 85/123/EEC - Treaty of Rome (1957), Article 86. The plaintiff, a motor car dealer, had been since 1980 the Nissan dealer for south County Kildare, pursuant to agreement with the defendant. In 1989, the plaintiff began selling used cars imported from Japan, iincluding Nissan vehicles. In October 1989 the plaintiff became aware that the defendant objected to the second hand car sales, and despite some discussion on the matter the defendant terminated the plaintiff's Nissan franchise by letter in December 1989, to take effect in February 1990. Subsequent to the termination the plaintiff excluded second hand Nissan vehicles from the range of imported vehicles which he sold and also carried on the second hand business at a separate premises from those relating to the Nissan dealership. The plaintiff applied for an interlocutory injunction pending the trial of his action claiming that the defendant had wrongly terminated the franchise. HELD by Barr J

granting the injunction: (1) without making a final determination on the issue, the plaintiff had established an arguable case that the termination of the agreement was in breach of the 1985 EEC Directive on Exclusive Dealing or in breach of Article 86 of the Treaty of Rome; (2) having regard to the respective positions of the parties, damages would not be an adequate remedy for the plaintiff if an interlocutory injunction was refused; (3) the balance of convenience lay in favour of granting the interlocutory injunction, since if the plaintiff was ulti- mately successful his loss if the injunction was not granted would be unquantifiable and signficant, whereas if the defendant was ultimately successful the undertaking as to damages by the plaintiff would be sufficient to compensate for any loss suffered through continuation of the franchise. O ' CONNOR -V- FIR8T NAT I ONAL BUILDING SOCIETY AND HENDERSON AND OR8 (MARGET80N & GREENE) HIGH COURT 3 JULY 1990 Negligence — Solicitor — Purchese of lend — Independent inspection — Whether solicitor under Invariable duty to recommend Independent Inspection of property —Whether Prima Fscleduty srlees — Building society — Whether dlssusdulng purcheser f r om sooklng independent Inspection The plaintiffs, husband and wife, purchased a house, in connection with which the first defendant advanced a loan and the second defendant (a firm of solicitors) acted on behalf of the plaintiffs. The house was in a bad state of decorative repair. When the plaintiffs were arranging the loan from the first defendant, they were told that an independent inspection could cost anything between £100 and £700 but that the Society would arrange a survey for a fee of £29. The plaintiffs paid this latter sum for the survey and signed a loan application form which provided that the Society accepted no responsibility for the condition of the property. When the plaintiffs saw their solicitor in the second defendant's firm, they inquired about an independent inspection of the property. The solicitor, who appeared to be under the impression that the plaintiff husband was in the building trade, recom- mended that they carry out a test them- selves on the floorboards and walls. The Society's survey failed to reveal that there was seriouos damage to the chimney flues in the house as well as some ground floor rot. The plaintiffs sued both defendants in negligenca HELD by Lynch J finding against the second defendants only: (1) the nature of the reference by the building society to an independent inspection did not amount to a representation dissuading the plaintiffs from obtaining such independent inspection, nor were they misled as to the form of the survey which the society arranged; and they must also be fixed with notice of the clause in the loan application form by which the society accepted no responsibility for the condition of the property. Dicta in Ward-v- McMaster[ 1989) ILRM 400; [1988] IR 337 applied; (2) while there was no absolute rule that a solicitor must always advise a purchaser to have an independent inspection by a suitably qualified person, a prima facie duty to so advise does arise which can only be negatived by the particular circumstances of a case; and in the instant case it was clear that the plaintiffs would have invested the necessary amount to provide for such an independent inspection, which would have

WHELAN -V- CORK CORPORATION HIGH COURT 13 FEBRUARY 1990 Land law — Restrictive covenant — Aaalgnmant of land — Rule in Tulk -v- Moxhay — Whether asaignaa having notice —Whether covenant enforceable by tenant against assignee of landlord — Interpretation of covenant — Whether covenant extinguished by assignee's purchase of fee simple — Constitution —Whether extinguishment of covenant in breach of property rights — Landlord and Tenant (Ireland) Act [Deasy's Act] 1860, s.13 — Conveyancing Act 1882, s.1 — Landlord and Tenant (Ground Rents) (No. 2) Act 1978, s.28 - Constitution, Article 40.3. The plaintiffs were the leasehold owners of property in respect of which a restrictive covenant existed in their favour which prohibited the construction on a certain portion of the land of any structure in excess of 12 feet in height. In 1984, the defendant Corporation purchased an interest in possession in the land in respect of which the restrictive covenant existed. In 1985, the defendant was informed by letter that the plaintiffs were entitled to the benefit of the restrictive covenant over the land. In 1989 the defendant Corporation purchased the leasehold interest in the property and later that year it also acquired the fee simple estate in the property. The plaintiffs sought injunctions to restrain the defendant from completing certain works on the ground that they were in breach of the restrictive covenant. It was agreed by the parties that the works would involve structures in excess of 12 feet in height. The defendant Cor- poration argued, however, that it was not bound by the covenant on the grounds that: (i) it was a purchaser for value without notice within s.1 of the 1882 Act; (ii) the covenant was not sufficiently wide to capture the defendant; (iii) the covenant was not a contract concerning the lands and thus could not be enforced by a tenant against an assignee of his landlord under s.13 of the 1860 Act (Deasy's Act); and (iv) the covenant ceased to exist pursuant to s.28 of the 1978 Act once the defendant pur- chased the fee simple estate. HELD by Murphy J refusing the injunctions sought: (1) the plaintiffs were entitled to enforce the covenant in equity as persons entitled in equity to the benefit of the bargain by which it was created against any person bound in equity by notice of it, either express or to be imputed at the time of acquisition of title Tulk -v- Moxhay (1848) 2 Ph 774 and Williams & Co Ltd -v- LSD Ltd (High Court, 19 June 1970) applied; (2) the defendant had notice of the covenant after it received the letter in 1985 indicating the plaintiffs' entitlement to rely on the covenant; but even prior to 1985 the defendant would have had notice imputed to them because the nature of the covenant should have resulted in inquiries being put in train to ascertain whether there were third parties such as the plaintiffs who might have been entitled to enforce the covenant; (3) the interpretation contended for the defendant that the word 'assign' in the covenant did not capture the circumstances by which it obtained the property was too narrow, and while it might have been more helpful to express imper- sonally the obligations imposed by the restrictive covenant than to identify it with the actions or inactions of particular persons, the court should take a practical and purposeful interpretation of the language used. Dicta in Ricketts -v- Enfield Church Wardens [1909] 1 Ch 544 approved; (4) s.13 of the 1860 Act (Deasy's Act) had no

ii