The Gazette 1984

JULY/AUGUST

1984

GAZETTE

appointed, could be used to assist under an assigned District Court Clerk. 2. The learned District Justice had no option but to find that Mr. Healy, as a matter of fact and law, was not "assigned" once the Chief Examiner of the Department of Justice so stated on evidence. Accepting the contention made on behalf of the Appellant, Finlay P. expressed the opinion that the scheme of the 1926 Act and the appropriate District Court Rule was that each and every peson appointed as District Court Clerk must be assigned to at least one District. The practical consequences of the concept of "attachment" would create absurd anomalies. Persons holding the rank and office of District Court Clerk and involved in many of the duties, powers, functions and responsibilities imposed by statute on District Court Clerks would be acting without authority. Therefore, once uncontradicted evidence was placed before the learned District Justice that Mr. Healy was attached to and working in the District Court Area of Naas at the date on which he issued the Summonses, the proper legal interpretaiton was that he was "an assigned District Court Clerk". HELD: There was no invalidity in the Summons by reason of its having been signed by Mr. Healy and the District Justice erred in law in striking out the Summons on the basis that he had no jurisdiction to hear it. Proceedings should be re-entered before the learned District Justice for continuances. The Director of Public Prosecutions -v- Kevin O'Rourke - High Court (per Finlay P.). 25 July. 1983 - unreported. George Bruen FAMILY LAW Claim by wife for share in family home. After being transferred from Dublin to Cork in 1972, the husband sold the family home, realising £5,000, out of which £3,200 was paid in discharge of the mortgage on the house. There was a balance over of £1,800, and it was agreed that because the wife contributed one- third of the purchase price of the house, she was entitled to £600. She never received the money and allowed her husband use it. The husband purchased a family home costing £9,000 in Cork and succeeded in getting his employers to take a mortgage for the full amount of the purchase money, thereby leaving the husband to pay the instalments due under the mortgage. He did not have to lay out any part of the purchase money. The £1,800 balance from the first home was used by the husband in furnishing and fitting the new home. The marriage later broke down. The wife claimed an interest in the

family home. The High Court held that because the wife was entitled to one-third of the £1,800, she became entitled to one- third share in the furniture and fittings (including carpets) in the home. The wife appealed. She claimed that the proper conclusion to be drawn from the use of her money in the home was that it gave her a one-third share in the house itself. Henchy J. (Griffin J. and Hederman J. concurring) referred to the judgment of Kenny J. in C. -v- C. [1976] I.R. 254, and said that since that decision it had been judicially accepted that where the matrimonial home had been purchased in the name of the husband, and the wife had, either directly or indirectly, made contributions towards the purchase price or the discharge of mortgage instalments, the husband would be held to be a trustee for the wife of a share in the house roughly corresponding with the proportion of the purchase money represented by the wife's total contribu- tion. Such a trust would be inferred when the wife's contribution was of such a size and kind as would justify the conclusion that the acquisition of the house was achieved by the joint efforts of the spouse. When the wife's contribution had been indirect (such as by contributing, by means of her earnings, to a general family fund) the Courts would, in the absence of any express or implied agreement to the contrary, infer a trust in favour of the wife, on the ground that she had to that extent relieved the husband of the financial burden he incurred in purchasing the house. Henchy J. was unable to accede to the proposition that the wife's £600 went into a family fund and that to that extent it eased the financial liability incurred by the husband in purchasing the house. HELD: the wife's £600 was in no way applied to the purchase of the house. The true position was that found by Costello J., namely that the £600 was applied by the husband, not in acquiring the house, but as part of the £1,800 he spent on furniture and fittings. The expenditure by the husband of the £600 could not be said to have given the wife any beneficial interest in the house. Dismissing the appeal, the Court held that the wife got a one-third share in the furniture and fittings (including carpets). McC. -v- McC. - Supreme Court (per Henchy ./.. Griffin and Hederman J.), 29 March. 1984 - unreported. Damian McHugh CRIMINAL INJURIES — STATUTE OF LIMITATIONS Delay in service of application to Circuit Court for compensation — Power of Circuit Court to extend the time prescribed by statute for making such application — Whether or not within the powers of the

Circuit Court to extend the time when extension of same would be in contraven- tion of the provisions of the Statute of Limitations Act, 1957 An application was made pursuant to the Local Government (Ireland) Act, 1898 and the Damage to Property Compensation Act, 1923, by Woodrow Packaging Limited for goods destroyed when a warehouse was destroyed by fire on 21 May, 1974. The Applicants were not the owners of the warehouse but had goods in the premises when it was destroyed and accordingly a preliminary notice of intention to apply for compensation was served in accordance with Order 52 of the Rules of the Circuit Court, 1950. The Applicant decided to withhold proceeding with its claim pending determination of the application which had been made by the owners of the building. Ultimately a decree was granted in favour of the owners for compensation for the damage in Dublin Circuit Court on 5 December, 1980. Once these matters had been determined the applicant applied on 31 January, 1982 to the Dublin Circuit Court by way of Notice of Motion claiming:— A. An Order pursuant to Section 21(2) of the Damage to Property (Compensation) Act, 1923 and pursuant to Order 59 Rule 10 of the Rules of the Circuit Court extending the time within which the Applicant can apply to the Circuit Court for compensation for criminal injuries committed on 21 May, 1974. B. An Order for the costs of the Motion. The Judge extended the time as sought in the Notice of Motion to 31 January, 1983 and an appeal against that Order was made by the Respondent. It is clear that it was the intention of the Applicant when serving its Notice of Motion to seek leave of the Court to extend the time prescribed by the Statute of Limitations, 1957 as the Rules of the Circuit Court only provide that the Preliminary Notice has to be served within seven days from the date of the commission of a criminal injury and do not apply any time limits for bringing an application to the Court for compensa- tion for the criminal injury. The only rules of Court that apply in relation to such a Notice of Application are that it should be served at least 15 days before the date upon which the application is intended to be made in the case of applications in the Dublin Circuit Court area. Section 11( l)(e) of the Statute of Limitations 1957 imposes a time limit of six years in relation to any cause of action accrued to .actions to recover sums recoverable by virtue of any enactment (with exceptions which are not relevant to this case).

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