The Gazette 1976

JUNE/JULY 1976

GAZETTE

bassy in Germany that if they wish- ed to purchase a greater area than five acres the consent of the Land Commission would be necessary. They were introduced by Mr. Taylor, auctioneer, Portumna, to Mr. Kent, and later ascertained that Mr. Gilmartin, auctioneer, Nenagh, was in charge of the sale. Mr. Gil- martin's brother, Michael, had a knowledge of German. Subsequent- ly a lengthy discussion took place. The President said that Mr. Denis Gilmartin was particularly concern- ed to ensure that all the parties fully understood the meaning and effect of Section 45 of the Land Act, 1965, which dealt with the purchase by a non-national of land in Ireland and a requirement for consent. In particular he was anxious that the purchasers should realise that if the consent of the Land Commission was refused the transaction must be cancelled. He was satisfied that Mr. Denis Gilmartin conveyed that informa- tion clearly and unequivocally through his brother, Michael, to the plaintiffs, and that they fully under- stood it. The President said he was im- pressed by the evidence of the Gil- martin brothers and was satisfied not only that they were witnesses of complete truth and accuracy but that they had acted in the entire transactions with a commendably high standard of integrity and re- spect for the rights of the plaintiffs as well as those of Mr. Kent. He was also satisfied that it had been made known to the plaintiffs that it would be necessary for them to provide 25% of the purchase price. The President said that although the plaintiffs had originally repre- sented their interest in the purchase as being confined to the possibility of farming, either that was a pre- tence or they had in the meantime changed their mind and were not concerned with the possibility of de- veloping the lands as a holiday re- sort, including the provision of holi- day homes or chalets. On May 19th, 1974, Mr. Sibel wrote to Mr. Kent's solicitor stating that after careful consideration of the political climate in Ireland and particularly in the light of recent developments they had agreed that they could no longer consider the purchase of the property or any other property in Ireland and asked to have the arrangement cancelled and to have their deposit returned. The President said that the refer- ence in their letter to "recent de- velopments" was apparently a refer-

ence to a bombing in Dublin. The solicitor replied on June 27th stating that he had been unofficially informed that the consent of the Land Commission would be forth- coming, indicating a discussion with Bord Failte with regard to the de- velopment at Old Court and stating that he believed there would be no problems. On July 3rd the Land Commission gave its consent. The President said he was satis- fied that Mr. Sibel, on a later visit to Ireland, had given to Mr. Kent a number of different reasons for his unwillingness now to complete the purchase but not one of them related to the political situation in Ireland. In particular he seemed to convey that Mr. Seum was unwill- ing to continue and that he himself would find it difficult from the fin- ancial point of view to continue on his own. Some Hesitation He said that notwithstanding a suspicion arising from the plaintiff's attempt to prevent the continued consideration by the Land Com- mission of their application for con- sent, he had finally and with some hesitation come to the conclusion that they did not understand that the monies which they had paid were by way of deposit on a bind- ing agreement to purchase, and they were entitled to the return of their money with interest. Sibel and Seum v. Kent — Finlay P. — unreported — 1 June 1976. FAMILY LAW Non-consummation of marriage - Ecclesiastical declaration of nullity affirmed. A woman, who had already obtain- ed a declaration of nullity in an eccleesiastical court, was granted a decree of nullity by the Supreme Court in Dublin, 30th June, 1976. when, in a reserved judgment, it upheld the 29-year-old woman's appeal against the refusal of the High Court to annul her marriage. The judgment was announced in camera and the appeal and original hearing of the petition also were held in camera. The names and addresses of the husband and wife were not disclosed. In the High Court, Mr. Justice Murnaghan had dismissed her petit- ion, which alleged fraud on the part of her husband, in that he did not, at the time of the marriage, intend 19

VENDOR AND PURCHASER

Due to their not understanding Eng- lish, £18,000 deposited by Germans for purchase of farm must be re- turned to them. Two Germans who had put down a deposit of £18,125 towards the pur- chase of a 117-acre farm on the shores of Lough Derg near Nenagh, Co. Tipperary, are to have the money returned to them under a judgment by the President of the High Court, Mr. Justice Finlay. The plaintiffs, Rudi Siebel and Willi Seum, both described as chem- ical cleaners, of Ludwig Strasse, Dudenhofen, West Germany, had sued Donald Kent, farmer, of The Old Court, Terryglass, Nenagh. They claimed that on March 21st, 1974, they discussed with Mr. Denis Gilmartin, auctioneer, the purchase of the property for £72,500. They were invited by Mr. Gilmartin to sign a document proporting to be a memorandum of a sale by private treaty and they did so. Neither of them, they pleaded, had any knowledge of the English language and they were not made aware by Mr. Gilmartin of the meaning and effect of signing the document. In particular they did not appreciate that the document was intended finally to bind them to the purchase. They paid the de- posit of £18,125 in two phases, the first of £2,000 and later the bal- ance. The Germans further pleaded that they believed that the discus- sion amounted to no more than a preliminary arrangement as to price and that no contract would be com- pleted until consent to sub-division was obtained from the Land Com- mission. They sought the return of the money with interest. Mr. Kent denied that the plain- tiffs had not any knowledge of the English language or that they had not been made aware by Mr. Gil- martin of the meaning and effect of the signing of the document. He claimed that they appreciated the document was intended finally to bind them and he counterclaimed for a declaration that the contract was a valid and binding one and that they should forfeit the deposit money. In a reserved judgment, the President said that when the plain- tiffs first arrived in Ireland in March, 1974, neither of them had any worthwhile knowledge of Eng- lish. Before coming to Ireland they had ascertained from the Irish Em-