The Gazette 1981

GAZETTE

DECEMBER 1981

negotiated. No date for completion had been fixed, the title on offer had to be submitted for approval and no agreement had been come to as to the price to be paid for the stock, and the other provisions requiring to be negotiated in the contract for sale of a licensed premises as a going concern had to be agreed. Secondly the letters, while they purported to record who the parties to the contract were, failed to do so or at least failed to do so fully or accurately. The letters were defective as a memorandum because they mistakenly gave Mr. O'Neill as the vendor of the fee simple when in fact he only had an undivided moiety. Gerald A. Carthy v. Michael O'Neill and Eileen O'Neill — Supreme Court (Hcnchy J.) — 30 January 1981 — u nrcported. Summaries of Judgments prepared by John F. Buckley, Barbara Hussey, and edited by Gary V. Byrne.

merely enclosed a copy of the letter to Mr. O'Neill. In the interval, on the 17 January, Mr. O'Neill executed a formal contract prepared by Mr. Black for the sale of the Silver Tassie to another purchaser for £200,000, Mr. Black having advised Mr. O'Neill that there was no note or memorandum of the contract with the Plaintiff. When the three letters of the 17 January came to light the Plaintiff was advised that they did constitute a sufficient note or memorandum under the Statute of Frauds and he instituted proceedings for specific performance of the contract. In the High Court the Judge would have granted specific performance had it not transpired that Mr. O'Neill was a joint tenant in fee simple of the premises with his wife. The Judge awarded damages against Mr. O'Neill in lieu of specific per- formance and made an order de- claring Mr. O'Neill to be a trustee for the Plaintiff of such beneficial interest as he was entitled to convey. Before making that order he directed that Mrs. O'Neill be added as a defendant. This having been done without prior notice to Mrs. O'Neill and without giving her an opportunity to plead or to be heard was held by the Supreme Court to be both a breach of the Rules of Court and a denial of natural justice and was plainly a part of the Order that could not stand. The Plaintiff appealed against the refusal to grant specific performance and the Defendant served a cross appeal contending that the Plaintiff was not entitled to either specific performance or damages on the grounds that the note or memorandum relied on was inadequate. The Court held that the Defendants contention was unanswerable for two reasons: the first being that the three letters far from reciting or evidencing a concluded oral contract made it clear that essential parts of what was expected to become a contract remained to be negotiated and the words "subject to contract" was no empty formula as was the case in Kellv v. Park Hall School Limited (1979) 113 I.L.T.R. 9. The three letters made it clear that essential parts of what was expected to become a contract remained to be

xxxvi