The Gazette 1976

J UNE /J U LY 1976

GAZETTE

the nominee or of the incorporated company. Per Griffin J.: Two questions, not decided in the High Court, were raised on appeal, i.e. whether a com- pany can hold a licence and whether the character or suitability of a director or shareholder of a company can be considered when the Certifi- cate of Transfer of the Licence is applied for at the Annual Licensing District Court. This Court sitting is a Court of appellate jurisdiction, should not normally decide or enter- tain questions not decided or con- sidered by the High Court. Opinions on such questions would in any event be merely obiter dicta, and should be reserved until the questions arise in an appeal, and are fully argued therein. Per Kenny J. — There is a widely held myth that a company incor- porated under the Companies Acts cannot be granted a licence to sell intoxicating drink, and that when it is so licensed, the licensee must be granted to the nominee. The case of D. (Cottingham) v. Cork Co. Justices (1906) 2 I.R 415, duly held that a company could be granted a licence. The illusion that a company cannot be licensed springs from the belief that a company cannot have a character, and hence is not a per- son. A modern company is a person in the sense that it can sue and be sued; it can be prosecuted in the District Court and can be indicted; injunctions can be granted against it, and its property may be sequest- rated. Good or bad character is a matter of local or public reputation, and the widest discretion is given to Justices in respect of their Certificate. A Licensing House is conducted in a disorderly way if convictions are had for breaches of the Licensing Acts, or if improper characters are allowed to resort there for improper purposes. In such a case a Company would, through their manager, whom they put in charge, have an evil rep- utation and a bad character. The conduct of the authorised agents of a company is its character. In an application for in Interim Transfer under the Public House (Ireland) Act 1855, the District Justice cannot of course transfer the licence to an unqualified person. He must however grant the transfer, if the evidence establishes :- (1) That either (a) the licensee has died, oi (b) that he has removed himself from the premises, or (c) that there has been a sale or assignment of his interest in the premises; (2) That notice of this application has been given to the Gardai and (3) That the applicant, in this case the com'

By an agreement of January, 1975, Mr. Woolton agreed to purchase a public house known as the Chariot Inn, Ranelagh, Dublin with licence attached. Mr. and Mrs. Woolton registered in May, 1975 as the direc- tors of Chariot Inns Ltd. The Com- pany passed a resolution appointing Mr. Woolton to apply for an ad interim transfer of the licence. The application came before the District Court on 28th May, 1975. The de- fendant Superintendent objected on the ground that Mr. Woolton had sustained several convictions for breaches of the licensing laws, at a time when Mr. Woolton had no interest in Chariot Inns Ltd. The application was withdrawn, and sub- sequently the Company appointed a first plaintiff, Mr. Henessy to make the application. On 4th June, 1975, District Justice Donnelly heard the application, and the Guards indic- ated that they had no objection to Mr. Hennessy. The Justice, having inspected the District Court books learned that 7 convictions had been recorded against Mr. Woolton in respect of the Revolution Club in Rutland Place. The District Justice then refused the ad interim transfer on the ground that the Company had not got a suitable character. Having considered in detail the law on the subject, and in particular Henchy J.'s decision, as a High Court Judge, in The State (Doyle) v. District Justices Carr and Delap — (1970) I.R. 87 — Finlay P. held that the applicant is entitled notwith- standing cause shown by the Super- intendent, to an absolute order of Certiorari quashing the District Justice's order, and to an order of Mandamus directing the District Justice to make an order to carry on the trade in the licensed premises until the next Annual Licensing Session. It is contended that Finlay P. wrongly held that the District Justice had power or discretion to refuse the interim transfer of the licence to the nominee of Chariot Inns Ltd., when it had been established that a direc- tor and part owner of that company was a disqualified person. But Finlay P. was correct in holding that the character or personal suitability of the applicant is not a factor to be taken into account in deciding whether an ad interim transfer should be granted. Per Henchy J. I am not persuaded that in a licensing case, where char- acter or personal suitability is íd issue, and the applicant is the nom- inee of an incorporated company, the inquiry is to be limited to the character or personal suitability of

In this contract however, seemingly time was not expressed to be of the essence ol the contract; in fact there was a clause that if the purchase was not completed before closing day, 22nd April, the purchaser was to pay to the vendor interest of 15% per annum on the unpaid balance of the purchase money until the date of actual completion. This is incon- sistent with the notion that time should be of the essence of the contract. 2. Was the purchaser, between 22nd April and 26th July, in such default of his obligations under the contract as to entitle the vendor in law to fix a reasonable time for com- pletion? It was within the clear knowledge of the purchaser, when he entered the contract, that it involved the taking over by him as a going concern of a licensed business. The title to the property did not present much difficulty, and the solicitor for the purchasers, having acted pre- viously, was in full possession of knowledge about the title. The pur- chaser was deliberately in conscious default of his obligations, for he made no early attempt to obtain a bridging loan. The vendor was there- fore entitled to call upon him to complete. 3. It was contended that the letter of 26th July, was invalid in fixing a time for completion, by not indicating precisely what steps were to be taken by the purchaser. This contention cannot be sustained, as it was well known to the solicitors concerned what was to be done for completion. 4. It was contended that the letter of 26th July, was invalid to require completion, because the two weeks allowed was not a reasonable time. Mainly in view of the time that had elapsed since the original date of completion, 22nd April, this letter was in the particular circumstances reasonable. The decision of Circuit Judge Neylon will be affirmed, and tla. appeal dismissed. Specific perfor- mance of the contract by the pur- chasers will be refused. O'Brien v. Seaview Enterprises Ltd — Finlay P. — unreported — 31A May, 1976. LICENSING The character of suitability of an applicant should not be taken into account in considering the granting of interim licence, but the character of the company concerned should be considered.

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