The Gazette 1992

GAZETTE

SEPTEMBER 1992

interest in the family home by virtue of Article 41.2 of the Constitution. L v L (Supreme Court, 5 December 1991) (supra) applied; (2) the High Court was correct in concluding that, in the absence of an express agreement between husband and wife, money contribu- tions by the wife to improvements made in the family home would not entitle the wife to a beneficial interest in the family home. Dicta in W v W [1981] ILRM 202 applied; (3) having regard, however, to the substantial contribution made by the plaintiff to the re- payment on the loans taken out on the prop- erty arising from her management of the bedsitter lettings, the High Court had erred in limiting the plaintiff's beneficial interest in the family home to 15%, and the correct portion to which she was entitled was 50%. Dicta in W v IV [1981 ] ILRM 202 applied. A.I.F. Ltd v Hunt and Hunt High Court 21 January 1991 HIRE-PURCHASE — MEMORANDUM OR NOTE — IN- ACCURATE STATEMENT OF PRICE — INACCURACY KNOWN TO DEALER AND HIRER BUT NOT TO FI- NANCE COMPANY — WHETHER JUST AND EQUITA- BLE TO DISPENSE WITH REQUIREMENTS OF LEGISLA- TION — PRACTICE — APPEAL FROM CIRCUIT COURT — ESTOPPEL — WHETHER ARISING — Hire-Purchase Act 1946, s.3. The plaintiff company was the finance com- pany in relation to a hire-purchase contract entered into by the defendants as co-hirers. The note or memorandum required by the 1946 Act overstated the hire-purchase price. This inaccuracy was known to the defendants and the dealer involved, but not the plaintiff company. The plaintiff had required the sec- ond defendant to enter into the transaction as co-hirer with the first defendant, his son. The second defendant directed his bank to repay the instalments by monthly order. When 17 of the 36 instalments had been repaid, the sec- ond defendant countermanded the order. The plaintiff instituted Circuit Court proceedings seeking enforcement of the agreement. The claim was dismissed as against the first de- fendant but was unsuccessful against the sec- ond defendant. The second defendant ap- pealed against the Circuit Court decision; the plaintiff did not appeal the dismiss against the first defendant. Held by Barron J dismissing the second defendant's appeal: (1) although, by virtue of the inaccuracy in the statement of the hire-purchase price, the requirements of s.3 of the 1946 Act had not been complied with, it was just and equitable that the Court dispense with such requirements having re- gard to the knowledge of the defendants and the lack of awareness of the inaccuracy on the part of the plaintiff; (2) once the second defendant had appealed by way of re-hearing to the High Court, all issues debated in the Circuit Court were open again; and even ifthe Circuit Court had found that the first defend- ant had not signed the hire-purchase agree- ment (and such finding had not in fact been made since if it had been the plaintiff's claim against the second defendant could not have been successful) the plaintiffwas not estopped in any manner by the dismiss of its claim against the first defendant in the Circuit Court. Texaco (Irl) Ltd v Murphy High Court 17 July 1991 LAND LAW — TENANCY OR LICENCE — EXCLUSIVE POSSESSION — TENANT ENTERING INTO POSSES- SION ON BASIS OF COMMITMENT THAT TENANCY WOULD BE PREPARED—GRANTOR NOT INTENDING

children. The wife remained full-time in the home, and contributed a substantial amount of time to the refurbishment of the family home. She made no direct or indirect finan- cial contribution to the refurbishment or to the farming activities in which the husband engaged. The wife instituted proceedings for divorce a mensa et thoro, for alimony and also for orders under the Married Women's Status Act 1957 claiming a beneficial interest in the family home and farm. In the High Court, Barr J granted the decree of divorce a mensa et thoro and al imony. He also awarded her a 50% share in the beneficial ownership of the family home, having regard to Article 41.2 of the Constitution: [1989] ILRM 528. On appeal by the husband in relation to the beneficial ownership only Held by the Su- premeCourt (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allowing the appeal: Article 41.2 of the Constitution did not justify the conclusion of the trial judge that the wife was entitled to a 50% beneficial ownership in the family home; and such conclusion was an unwarranted development of the doctrine by which a spouse, whether through direct or indirect money contributions, could obtain a beneficial ownership by way of constructive trust. Per curiam: it was permissible for the Oireachtas, in order to give effect to the provisions of Article41.2.2 thata wife should not be obliged to engage in work outside the home to the neglect of her duties in it, to legislate that a beneficial ownership could be declared in judicial separation proceedings, as in the Judicial Separation and Family Law Reform Act 1989. N.(E.) v N.(R.) and Anor Supreme Court Supreme Court 5 December 1991 FAMILY — HUSBAND AND WIFE — PROPERTY — TRUST — WIFE CONTRIBUTING TO FAMILY FUND THROUGH REMAINING AT HOME—WIFE ALSOMAN- AGING SOME BUSINESS AFFAIRS IN HOME — WHETHER GIVING RISE TO BENEFICIAL INTEREST IN HOME — RESULTING OR CONSTRUCTIVE TRUST — Constitution, Article 41.2. The plaintiff, a widow, instituted proceedings against the executors of her husband's estate claiming entitlement to a beneficial interest in the family home. After she and her husband had married, she gave up nursing and de- voted her time to looking after the home and three children of the marriage. The family home was bought from the husband's re- sources and was in his sole name. A sum of £5,000 was borrowed to convert part of the house into bedsitters for letting. These bedsit- ters, nine in all, were managed by the plain- tiff. The borrowed sum was paid off out of the rent received from the bedsitter tenants. A further sum of £15,000 was borrowed to build a two storey extension to the house. On the husband's death, this loan was paid off by virtue of the endowment policy. In the High Court, Barron J held that the plaintiff's contri- bution as mother in the home did not entitle her to any beneficial share in the house pursuant to Article 41.2 of the Constitution, but he found she was entitled to a 15% share arising from her management ofthe bedsitters and the contribution this made to the repay- ment of loans: (1990] 1 IR 383. On appeal to by the plaintiff Held by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allowing the appeal: (1) the High Court had been correct in deciding that the plaintiff was not entitled to any beneficial

TO GRANT TENANCY. The defendant applied to the plaintiff com- pany in 1969 to operate as a Texaco retail outlet on a site he intended to buy. The company informed him that it would not be interested in such a proposal but that it would be looking for tenants for Texaco-owned sites. In fact, the company did not, at that time have a practice of granting tenancies but rather successive three month licences only. The defendant was successful in entering into possession of a Texaco-owned site. On entry, he was informed that a tenancy agreement was being drawn up, but he also signed an agreement acknowledging that the arrange- ment with the company was for a three month licence. A number of further agreements were signed by the defendant over the years, but no tenancy agreement was ever produced. In respect of some of the later agreements, the defendant objected to the form of the docu- ments. The company produced a three year licence agreement which the defendant re- fused to sign and it then sought immediate possession. Held by Barron J refusing the relief sought: although the company had a policy for not entering into tenancy arrange- ments, the defendant in the instant case had entered into possession on the basis that he would at some stage be granted such a ten- ancy and having regard to the exclusive pos- session enjoyed by him such a tenancy must have come into effect and the plaintiff was not therefore entitled to possession. Irish Shell & BP Ltd v } Costello Ltd [1984] IR 511 distin- guished. The plaintiff had instituted civil proceedings arising from his arrest under s.30 of the Of- fences against the State Act 1939, claiming damages for slander, wrongful arrest, false imprisonment, negligence and failure to vin- dicate his constitutional rights. The trial of the action lasted 5 days. It appeared that the Gardai thought that the plaintiff was another person. The trial judge put two questions to the jury,the first being whether the plaintiff had been arrested as 'Kevin Walsh', to which the jury answered 'Yes', and, secondly, if the first question was answered in the affirmative, to assess damages which the jury assessed at £28,000. On taxation of costs of the action, the Taxing Master reduced the brief fee al- lowed to the senior counsel for the plaintiff. The briefing solicitor for the plaintiff, who had emigrated to the United States, was unavail- able to state whether he had exercised an independent judgment on the level of fee to be allowed with the leading senior. The lead- ing senior had since died. The second senior had understood the fee to have been agreed. The plaintiff had been informed prior to the trial as to the level of the fees. The Taxing Master had also disallowed a pre-trial opin- ion given by the junior counsel for the plain- tiff. On appeal by the plaintiff Held by Lynch J allowing the appeal and remitting the case to the Taxing Master: (1) the Taxing Master had erred in concluding that the solicitor for the Smith v Ireland and Ors High Court 14 February 1991 PRACTICE — COSTS — COUNSEL'S FEES—WHETHER SOLICITOR MAKING INDEPENDENT JUDGMENT AS TO LEVEL OF FEE — SOLICITOR NOT AVAILABLE TO GIVE DIRECT EVIDENCE COUNSEL HAVING DIED — CLIENT INFORMED — WHETHER SPECIAL FEE — PRE- TRIAL OPINION —WHETHER JUSTIFIABLE — Rules of the Superior Courts 1986, o.99, r.37(18).

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