The Gazette 1993

GAZETTE

APRIL 1993

dence of other courts. Commission v Coun- cil [1973] ECR 575 and Attorney-General of Hong KQng v Ng Yuen Shiu [1983] 2 AC 629. Irish Bank of Commerce v O'Hara Supreme Court 7 April 1992 LAND LAW - CONVEYANCINC -JUDGMENT MORT- , CAGE - APPLICATION FOR WELL-CHARGING OR- DER - WHETHER AFFIDAVIT GROUNDING APPLI- CATION MUST SPECIFY PARISH INWHICH PREMISES TO BE CHARGED IS SITUATED - TRUE MEANING OF LEGISLATION - Judgments (Ireland) Act 1850, s.6 The plaintiff bank sought a well-charging order on property in which the defendant had an interest. The defendant did not deny that the sum on which the well-charging order was sought was due and owing to the bank. However, he argued that the judg- ment debt was not well charged on the ground that the affidavit grounding the ap- plication did not comply with the require- ments of s.6 of the 1850 Act in that it did not specify the parish in which the property in question was situated, such being required for property situated in a town. The affidavit averred that the property was situated in the Borough of Dun Laoghaire. In the High Court, Costello J held that, since there was no evidence that Dun Laoghairewasa 'town' for the purposes of the 1850 Act, the affida- vit need not specify the parish. He also held that, in any event, the terms of s.6 of the 1850 Act were not mandatory in nature. On appeal by the defendant HELD by the Su- preme Court (Finlay CJ, McCarthy and O'Flaherty JJ) dismissing the appeal: (1) the case law on s.6 of the 1850 Act appeared to indicate a requirement that property situ- ated in a town must be identified by the parish in which it was. Credit Finance Co Ltd v Grace (Supreme Court, 9 June 1972) applied; (2) however, as there was no evi- dence that the Borough of Dun Laoghaire was a 'town' for the purposes of the 1850 Act, the Court should proceed on the basis that the affidavit grounding the application was not required to specify the parish in which the property was situated. Dardis & Dunn Seeds Ltd v Hickey (High Court, 11 July 1974) referred to; (3) the true interpre- tation of s.6 of the 1850 Act required the Court to have regard to the clear objects it was intended to achieve; and since it was intended to achieve the clear identification of the person and property to be charged, the mere omission of a requirement of s.6 which did not affect the question of the identity of the property or the debtor could not in itself invalidate the charge on the property. Thorp v Brown (1867) LR 2 HL 220 and Credit Finance Co Ltd v Grace (Supreme Court, 9 June 1972) applied. In re Murphy and McCormack [1930] IR 322 not followed. Per curiam: greater care would need to be taken to ensure no mistake occurred concerning the correct identifica- tion of the property involved than with the identification of the judgment debtor. Dublin County Council v Eighty Five Devel- opments Ltd Supreme Court 9 April 1992 LOCAL GOVERNMENT - PLANNING - REFUSAL - GROUNDS - WHETHER APPLICANT ENTITLED TO COMPENSATION FOR REFUSAL - WHETHER GROUNDS FOR REFUSAL CLEARLY WITHIN CLASS OF EXEMPTIONS TO COMPENSATION - Local Gov- 2

to the bank. Dicta in Whitworth Street Es- tates Ltd v Miller [1970] AC 583 approved; (2) the terms of the debenture were such that the bank was creating a level of control over book debts which indicated an intention to create a fixed charge over the book debts of the company. In re Keenan Bros Ltd [1985] IR 401 applied. Wiley v Revenue Commissioners Supreme Court 9 April 1992 JUDICIAL REVIEW - LEGITIMATE EXPECTATION - EXCISE DUTY REFUND SCHEME FOR CERTAIN DRIV- ERS OF MOTOR VEHICLES - APPLICANT NOT COM- ING WITHIN SCHEME - APPLICANT PREVIOUSLY RECEIVING REFUND - SUBSEQUENT REFUSAL - WHETHER APPLICANT HAVING LEGITIMATE EXPEC- TATION TO REFUND - Imposition of Duties (No.236) (Excise Duties on Motor Vehicles, Televisions and Gramophone Records) Order 1979 The applicant had certain physical disabili- ties which prevented him from driving an ordinary motor vehicle. He had no use in one leg for driving purposes and his left ankle was damaged as a result of extra stress placed on it. In 1983 and 1985, he pur- chased new motor vehicles for which he obtained from his local authority certificates of exemption from road tax under s.43(1) of the 1968 Act, which applies only where the driver 'is wholly, or almost wholly, without the use of each of his legs.' Under the 1979 Order, the Revenue Commissioners oper- ated a refund scheme on the excise payable on motor vehicles. This scheme was based on the same criteria as for the road tax refund, and until 1986 the Revenue ac- cepted a certificate of exemption from road tax as proof of entitlment to the excise duty refund. Thus, in 1983 and 1985, the appli- cant obtained the excise duty refund on presentation of the road tax exemption cer- tificates. In 1986, the Revenue altered their policy and required a copy of the medical certificate on which the road tax exemption was granted. In 1987, when the applicant applied for a refund under the 1979 Order, he was refused on the ground that the medi- cal certificate did not indicate that he was without the use of each of his legs. The applicant sought judicial review of the re- fusal on the ground that, as he had received the refunds in 1983 and 1985, he had a legitimate expectation that he would re- ceive the refund in 1987, and that the Rev- enue Commissioners had not been entitled to change its pol icy without notice to him. In the High Court, Blayney J dismissed the claim: [1989] IR 350. On appeal HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismiss- ing the appeal: (1) since the applicant knew or ought to have known that his physical condition did not entitle him to any refund under the 1979 Order, he could argue only that he had an expectation to a refund based on the fact that he had been given such a refund in the past, but this could not be described as a legitimate expectation; (2) to accede to the applicant's arguments would involve the Court ordering a statutory body to act ultra vires the powers conferred on it by statute, and the Court would not extend the boundaries of legitimate expectation in this way. PerO'Flaherty J: the boundaries of legitimate expectation in Irish case law were similar to those established in the jurispru-

ernment (Planning and Development) Act 1963, ss.55, 56 The company had applied for planning per- mission for the erection of houses, a school and a shopping centre. The Council had refused permission on the ground, inter alia, that the development would not be desir- able having regard to traffic density and the speed of vehicles which would be gener- ated. On appeal, An Bord Pleanala also refused permission on the ground, inter alia, that the road on which it was proposed to site the buildings were'substandard in width and... would give rise to traffic hazard by reason of the additional traffic turning move- ments it would generate.' The Counci I sought a declaration that this ground for refusal came within the exemption to compensa- tion contained in s.56ofthe 1963 Act. S.56 provides, inter alia, that no compensation for refusal shall be given where the ground for refusal was that the development would endanger public safety by reason of a traffic hazard. In the High Court, Gannon J HELD the ground given in the instant case did not come within s.56 and that compensation was therefore payable. On appeal by the Council HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy and O'Flaherty JJ; Egan J dissenting) allowing the appeal: a planning authority was not required to fol- low the precise words of s.56 of the 1963 Act in order to bring the ground of refusal within the section; and while great care should be taken to indicate with clarity the precise basis on which permission is re- fused, the ground given would be inter- preted in an ordinary and common sense manner to ascertain whether it fell within s.56 of the 1963 Act; and in the instant case the true interpretation was that the ground for refusal fell within s.56 and that no com- pensation was payable under s.55 of the Act. Dicta in In re XJS Investments Ltd [1986] IR 750 applied. Crown Chemical Co(lrl) Ltd v Cork County Council Supreme Court 4 June 1992 MALICIOUS INJURIES-WHETHER DECREE FOR COM- PENSATION UNDER MALICIOUS INJURIES CODE AMOUNTING TO JUDGMENT DEBT - WHETHER INTEREST PAYABLE ON DECREE - Debtors (Ireland) Act 1840, s.26 - Local Government (Ireland) Act 1898 The company claimed that it was entitled to claim interest on a decree made in its favour under, inter alia, the 1898 Act, arising from malicious injury to its property. The defend- ant Council argued that interest was not payable since the decree did not amount to a judgment debt. On case stated HELD by the Supreme Court (Hederman, O'Flaherty and Egan JJ): the decree for compensation under the malicious injuries code cast an immediate duty on the responsible local authority to raise, levy and pay the sum, a duty enforceable by judicial review; but the decree did not constitute a judgment debt within s.26 of the 1840 Act, and therefore interest was not payable on the decree. R. (Bennett) v King's County County Council [1908] 2 IR 178 applied. [Note: the decree in the instant case arose out of events which preceded the entry into force of the Mali- cious Injuries Act 1981 .J