The Gazette 1976

GAZETTE

J UNE /J U LY 1976

RECENT IRISH CASES

was adjourned to Dublin. The cases cited appear to establish the following principles : - 1. Where two people provide the purchase price for property which is conveyed to one of them only, prima facie the person, into whose name it is conveyed will hold the property on trust in shares proportionate to their contributions to the purchase price. 2. This presumption may be re- butted by evidence of a contrary intention. 3. As between husband and wife, a Court must take into consideration the nature of the mutual relationship between them. This does not how- ever mean that, in the case of prop- erty in the sole name of a spouse, a Court is entitled to presume an agreement, without evidence to sup- port it. 4. Where there is a Joint Account between husband and wife, into which they put all their resources, it should be assumed, unless there is compelling evidence to the con- trary, that the account was intended as a joint account, with equal rights over it to each of the parties. In this case, as the land was purchased with money drawn from the joint account, and was made by agreement between the parties, it was held that the account had be- come the joint property of the hus- band and wife equally. Accordingly they must both be held to have con- tributed to the purchase in equal shares. The defendant husband's counterclaim for his chare of the money left in the deposit account is rejected, as the plaintiff continued to contribute to the defendant, while he was out of employment after the separation. Declaration made accord- ingly. Ann Galligan v. Matthew Galligan — Circuit Judge McWilliam — Gavan Circuit Court — 1972 — unreported. VENDOR AND PURCHASER In this specific sale of licensed premises, time was deemed of the essence of the contract The pur- chaser delayed completion deliber- ately, in conscious default of Ids obligations. Consequently his applic- ation for specific performance will be refused. Appeal from Cork Circuit Court dismissed. On 5th April, 1974, the plaintiff signed a contract with defendants for the purchase of the freehold, Seaview Hotel, near Kinsale, with

licence attached for £34,500. The contract provided for a deposit of £8,675, but only £5,000 was actually paid. Negotiations for this contract had taken place for the previous two months. No specific date for closing was fixed. When the defend- ant's solicitors first sent the draft contract, they erroneously described the premises as leasehold, but sent a fresh contract subsequently; here a closing date of 22nd April, was inserted, and a clause provided that time was to be of the essence of the contract. On 20 May, 1974, solicitors for the plaintiff purchaser wrote, revealing a number of debentures against the vendor company. Eventu- ally on 26th July, the solicitors for the defendant vendors wrote stating that his clients were dissatisfied with the delay, insisted on making time of the essence of the contract, and called upon the plaintiff to com- plete within two weeks. The plain- tiff was on vacation, and could not be contacted until 2nd August. On 6th August, the defendant vendors repeated that no further extension could be granted, and threatened to cancel the contract. On 6th August, the plaintiff purchaser went to his bank to arrange a bridging loan, which was granted on 8th August. On 9th August, two letters were sent:- (1) The solicitors for the vendor wrote by post to the pur- chasers stating that, as the sale had not been completed his client was withdrawing from the sale; (2) the solicitors for the purchasers wrote to the vendor sending requisitions and a draft conveyance, and stating that the purchaser was willing to complete immediately; this letter was delivered the same afternoon. On 12th August, solicitors for purchasers offered to close that afternoon, pro- vided vendors held the conveyance until it was sold. On same date, solicitors for the vendors pointed out that the deadline stipulated had ex- pired; a further letter by vendor's solicitor of 13th August rejected the terms offered by defendant's solic- itors on the 12th. At the end of August, the vendors brought pro- ceedings for specific performance of the contract. The vendor however did not give evidence in Court, but his solicitor did. The following issues of law are involved : - 1. Is the contract for sale, being the sale of a licensed premises, to be deemed a contract in which time for completion is of the essence ? Normally in the sale of a public house as a going concern, time is of the essence of the contract, whether expressed to be so or not. 25

EQUITY Lands held in sole name of husband, but bought from a joint account, are deemed to belong to husband and wife equally. The plaintiff and defendant were married for 11 years. They were married and divorced in America, and, though originally from County Cavan, are still living there. The plaintiff wife claims to be entitled to half of a farm of land m County Cavan which was purchased in de- fendant husband's sole name, with money from a joint account. Thf parties were married in 1961, and both worked hard, and lived to- gether in mutual harmony, pooling their resources in a joint account. In 1964, they decided to purchase a small farm near their farm in Co. Cavan. The money was provided from the joint account, and sent by the defendant to his father, who arranged that the farm should be transferred into the sole name of the defendant. The defendant's father subsequently received all the rents and profits of the farm, al- though he gave the parties some money on their occasional visits to Ireland. Towards the end of 1968, the defendant was addicted to strong drink and in January, 1969, the plaintiff wife, had the joint account transferred into a savings account in her own name. Some time sub- sequently, the plaintiff came on a visit to Ireland and discovered that the lands were in her husband's sole name. She endeavoured unsuccess- fully to have the lands transferred into their joint names. When they arranged to separate it was agreed that the plaintiff would pay the de fendant $1,000 which she did in two payments in November, 1969. By June, 1972, there was still $3,862 in the savings account which the plaintiff retained. The plaintiff obtained a divorce in Illinois in May, 1972, and the defendant did not contest the proceedings; at this time the Court declared that the plaintiff wife was entitled to an un- divided half of the lands in Cavan. The plaintiff agreed that her earn- ings during the period of the joint account were about two-thirds of those of the defandant. The defend- ant, at first, contended in Cavan that the whole case was governed by American law, and that the plaintiff should have produced evidence of American law. However, this point was abandoned when legal argument