The Gazette 1992

SEPTEMBER

1992

GAZETTE

that my estate both real and personal which I die possessed of... be divided in the following percentage shares.' There followed a distri- bution of the estate in percentage terms, which included a share of 10% to Catherine O'Mahony. The dwelling house in question had not been sold at the time of the testator's death. The question then arose as to whether, in the light of the quoted sentence from the will, the estate should be distributed under the intestacy rules. In the High Court, Lardner J held that the percentage distribution of the estate could only take place if the house had been sold, and since this had not occurred that part of the will was not effective. He also declined to admit as extrinsic evidence that the testator had made two previous wills as indicating an intention against intestacy. On appeal HELD by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) allowing the appeal: (1) the text of the will indicated that the testator did not intend an intestacy, but the will had been poorly drafted to deal with the situation which arose; and si nee the court's first duty was to give effect to the testator's intention, it should endeavour to fill an omis- sion in the will, even if this goes against a literal reading of the will, provided the court does not affect the substance of the words used so as to create a completely new will. Dicta in In re Patterson, deed. [1899] 1 IR 324 applied; (2) in this light the will should be interpreted as indicating that, since the dwell- ing house had not been sold, Catherine O'Mahony was to receive the dwel I ing house as well as 10% of the residue of the estate. Per curiam: since extrinsic evidence was not re- quired to resolve the issues raised in the instant case, the Court would reserve for a future case the extent of the admissibility of extrinsic evidence under s.90 of the 1965 Act. Rowe v Law [1978] IR 55 discussed. On 12 May 1989, the applicant company sought planning permission for a bulk LPG Depot. The appropriate fee was not paid by the company until 30 June. The company then made enquiries as to the processing of the application. On 31 August 1989, the Council wrote to the company to suggest a meeting concerning the safety aspects of the application. A meeting took place on 6 Sep- tember 1989, during which the company discovered for the first time that the plans it had submitted with the application omitted details concerning thermal insulation. De- tails of this were furnished on 8 September 1989. The planning application was refused on 10 November 1989. It was agreed that this decision reached the company within 2 months of the company supplying details of the thermal insulation, but the company sought a declaration that a default permission must be deemed to have been issued on 30 August 1989, 2 months after the appropriate fee was lodged by the company. HELD by Barron J: (1) the company's notice for planning permis- sion complied with Article 15 of the 1977 Regulations since it referred to the physical Calor Teo v Sligo County Council High Court 26 July 1991 LOCAL GOVERNMENT - PLANNING PERMISSION - DEFAULT PERMISSION - WHETHER GRANTED - WHETHER SUCH PERMISSION AMOUNTING TO MA- TERIAL CONTRAVENTION OF DEVELOPMENT PLAN - Local Government (Planning and Development) Act 1963, s.27 Local Government (Planning and Development) Regulatoions 1977, Article 15

'nature and extent' of the development and it was not required to specify the possible or even probable consequences of such devel- opment. Keleghan v Corby (1977) 111 ILTR 144 distinguished; (2) since the Council did not serve any notice on the company under s.27 of the 1963 Act, the time period for a default permission began on 30 June 1989, and thus a default permission was granted on 30 August; (3) a default permission is permis- sion to carry out the development in accord- ance with the original plans submitted. Readymix (Eire) Ltdv Dublin County Council (Supreme Court, 30 July 1974) applied; (4) since the company had failed to submit ther- mal insultation plans with its original applica- tion and the Council's Fire Officer had indi- cated that such an application would not conform to the requirements of the 1981 Act, the default permission in the instant case was not valid because it would constitute a mate- rial contravention of the the Council's devel- opment plan, which required compliance with the 1981 Act. Sun Fat Chan v Osseous Ltd Supreme Court 30 July 1991 PRACTICE - ACTION - DISMISSAL - ADMITTED FACTS - WHETHER CLAIM COULD SUCCEEDWHETHER CLAIM SHOULD BE DISMISSED AT STAGE OF DELIVERY OF STATEMENT OF CLAIM - ACTION IN CONTRACT The plaintiff instituted proceedings claiming specific performance of a contract with the defendant company for the sale of land. The contract was subject to the plaintiff, as pur- chaser, obtaining planning permission, within six months, for the erection of a single dwell- ing on the land. Permission within the stated period was not sought. Some time later the plaintiff successfully obtained, with the en- couragement of the defendant, planning per- mission but this was revoked by An Bord Pleanala on appeal by a third party. The defendant then rescinded the contract of sale. In the High Court, the defendant sought to have the plaintiff's proceedings dismissed on the ground that, on the admitted facts, the plaintiff could not succeed. The plaintiff ar- gued that the right to rescind was vested in the plaintiff only. Blayney J rejected this argu- ment and dismissed the action on the ground put forward by the defendant. On appeal by the plaintiff to the Supreme Court, the plaintiff did not rely on the ground put forward in the High Court but argued that, since the defend- ant had encouraged the plaintiff to seek plan- ning permission outside the time limit speci- fied in the contract, the defendant should not be entitled to rely on the right to rescind stated in the contract. HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the appeal: (1) since the plaintiff had not questioned the inherent jurisdiction to dismiss a claim at the stage of the delivery of a statement of claim, the Court should proceed on the basis that such juris- diction existed; but in any event it should be exercised with caution, and the Supreme Court should be prepared to take into consid- eration arguments by a plaintiff which were not raised at first instance even if they might have been. Barry v Buckley [1981] IR 306 referred to; (2) the plaintiff's argument on appeal required the court to imply a term into the contract between the parties, but since it could not be said that such a term would have been agreed to by the defendant as vendor at the time the contract was made, the court

(approved by the Minister) included new categories of nurses, it was not possible for the Board to argue that the old register could be capable of adaptation under the 1985 Act; so that while the Board was entitled under s.25 of the Act to charge retention fees in respect of the register, the Board had not been entitled to charge a fee in 1987 when it had not yet prepared a register under the 1985 Act; and to that extent the plaintiffs were entitled to suc- ceed. Mantruck Services Ltd and Anor v Ballinlough Electrical RefrigerationCo Ltd SupremeCourt 30 July 1991 INJUNCTION - INTERLOCUTORY - FAIR ISSUE - BAL- ANCE OF CONVENIENCE - SOLE DISTRIBUTOR AGREE- MENT - WHETHER AGREEMENT RESTRICTING OR DIS- TORTING COMPETITION CONTRARY TO EUROPEAN COMMUNITY LAW - WHETHER AGREEMENT VALID ON ITS FACE - Treaty of Rome, Article 85 Since 1980, the plaintiffs had held a form of soledistributorshipagreement to supply within the State certain transport refrigeration equip- ment of the 'Carrier' make. The defendant company was established in 1986 and ini- tially obtained 'Carrier' equipment from the plaintiffs. The plaintiffs discovered in early 1991 that the defendants had begun to import directly 'Carrier' equipment from Belgium or France and that it was holding itself out as an authorised distributor in the State of the 'Car- rier' equipment. The plaintiffs instituted pro- ceedings claiming injunctive and other relief and damages. They were granted interlocu- tory injunctions in the High Court (Denham J) preventing the defendant from holding itself out as distributor of 'Carrier' products and also from selling or advertising 'Carrier' prod- ucts. On appeal by the defendant HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ) allowing the appeal in part: (1) the plaintiffs had made out a fair case that the defendant was not entitled to describe itself as authorised distributor, and since the making of such order was not opposed, this part of the High Court order would be upheld; (2) there should be no interlocutory injunction pre- venting the defendant selling or advertising 'Carrier' products, because the plaintiffs had not made out a fair case that their sole distributorship agreement was compatible with the prohibitions in Article 85 of the Treaty of Rome, and the trial judge had erred in stating that the agreement was valid on its face; and, moreover, the balance of conven- ience also favoured the defendant on this aspect of the case because, notwithstanding the normal undertaking as to damages by the plaintiffs, it would be difficult to quantify the damage in money terms to a growing busi- ness; and in the circumstances the defendant would not be protected by an undertaking. Passage in Bellamy and Child, CommonMar- ket Law of Competition, 3rd ed., para.6-013 discussed. In re Estate of Curtin, deed. Supreme Court 31 July 1991 LAND LAW - SUCCESSION - WILL - INTERPRETATION - INCONSISTENCY - WHETHER EXTRINSIC EVIDENCE ADMISSIBLE - WHETHER REQUIRED - INTENTION OF TESTATOR - FUNCTION OF COURT - Succession Act 1965, s.90 The testator, who died in 1987, had made a will in 1985. The will stated that his dwelling house was to be left to one Catherine O'Mahony. The will continued: 'In the event of I (sic] selling the dwelling house... I direct

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