The Gazette 1992

GAZETTE

SEPTEMBER

1992

(approved by the Minister) included new

categories of nurses, it was not possible for the

Board to argue that the old register could be

capable of adaptation under the 1985 Act; so

that while the Board was entitled under s.25

of the Act to charge retention fees in respect

of the register, the Board had not been entitled

to charge a fee in 1987 when it had not yet

prepared a register under the 1985 Act; and to

that extent the plaintiffs were entitled to suc-

ceed.

Mantruck Services Ltd and Anor v Ballinlough

Electrical RefrigerationCo Ltd SupremeCourt

30 July 1991

INJUNCTION - INTERLOCUTORY - FAIR ISSUE - BAL-

ANCE OF CONVENIENCE - SOLE DISTRIBUTOR AGREE-

MENT - WHETHER AGREEMENT RESTRICTING OR DIS-

TORTING COMPETITION CONTRARY TO EUROPEAN

COMMUNITY LAW - WHETHER AGREEMENT VALID

ON ITS FACE - Treaty of Rome, Article 85

Since 1980, the plaintiffs had held a form of

soledistributorshipagreement to supply within

the State certain transport refrigeration equip-

ment of the 'Carrier' make. The defendant

company was established in 1986 and ini-

tially obtained 'Carrier' equipment from the

plaintiffs. The plaintiffs discovered in early

1991 that the defendants had begun to import

directly 'Carrier' equipment from Belgium or

France and that it was holding itself out as an

authorised distributor in the State of the 'Car-

rier' equipment. The plaintiffs instituted pro-

ceedings claiming injunctive and other relief

and damages. They were granted interlocu-

tory injunctions in the High Court (Denham J)

preventing the defendant from holding itself

out as distributor of 'Carrier' products and

also from selling or advertising 'Carrier' prod-

ucts. On appeal by the defendant

HELD

the Supreme Court (Finlay CJ, Hederman and

McCarthy JJ) allowing the appeal in part: (1)

the plaintiffs had made out a fair case that the

defendant was not entitled to describe itself as

authorised distributor, and since the making

of such order was not opposed, this part of the

High Court order would be upheld; (2) there

should be no interlocutory injunction pre-

venting the defendant selling or advertising

'Carrier' products, because the plaintiffs had

not made out a fair case that their sole

distributorship agreement was compatible

with the prohibitions in Article 85 of the

Treaty of Rome, and the trial judge had erred

in stating that the agreement was valid on its

face; and, moreover, the balance of conven-

ience also favoured the defendant on this

aspect of the case because, notwithstanding

the normal undertaking as to damages by the

plaintiffs, it would be difficult to quantify the

damage in money terms to a growing busi-

ness; and in the circumstances the defendant

would not be protected by an undertaking.

Passage in Bellamy and Child,

CommonMar-

ket Law of Competition,

3rd ed., para.6-013

discussed.

In re Estate of Curtin, deed. Supreme Court

31 July 1991

LAND LAW - SUCCESSION - WILL - INTERPRETATION -

INCONSISTENCY - WHETHER EXTRINSIC EVIDENCE

ADMISSIBLE - WHETHER REQUIRED - INTENTION OF

TESTATOR - FUNCTION OF COURT - Succession Act

1965, s.90

The testator, who died in 1987, had made a

will in 1985. The will stated that his dwelling

house was to be left to one Catherine

O'Mahony. The will continued: 'In the event

of I (sic] selling the dwelling house... I direct

that my estate both real and personal which I

die possessed of... be divided in the following

percentage shares.' There followed a distri-

bution of the estate in percentage terms,

which included a share of 10% to Catherine

O'Mahony. The dwelling house in question

had not been sold at the time of the testator's

death. The question then arose as to whether,

in the light of the quoted sentence from the

will, the estate should be distributed under

the intestacy rules. In the High Court, Lardner

J held that the percentage distribution of the

estate could only take place if the house had

been sold, and since this had not occurred

that part of the will was not effective. He also

declined to admit as extrinsic evidence that

the testator had made two previous wills as

indicating an intention against intestacy. On

appeal

HELD

by the Supreme Court (Finlay

CJ, McCarthy and O'Flaherty JJ) allowing the

appeal: (1) the text of the will indicated that

the testator did not intend an intestacy, but

the will had been poorly drafted to deal with

the situation which arose; and si nee the court's

first duty was to give effect to the testator's

intention, it should endeavour to fill an omis-

sion in the will, even if this goes against a

literal reading of the will, provided the court

does not affect the substance of the words

used so as to create a completely new will.

Dicta in

In re Patterson, deed.

[1899] 1 IR 324

applied; (2) in this light the will should be

interpreted as indicating that, since the dwell-

ing house had not been sold, Catherine

O'Mahony was to receive the dwel I ing house

as well as 10% of the residue of the estate. Per

curiam: since extrinsic evidence was not re-

quired to resolve the issues raised in the

instant case, the Court would reserve for a

future case the extent of the admissibility of

extrinsic evidence under s.90 of the 1965 Act.

Rowe v Law [1978] IR 55 discussed.

Calor Teo v Sligo County Council High Court

26 July 1991

LOCAL GOVERNMENT - PLANNING PERMISSION -

DEFAULT PERMISSION - WHETHER GRANTED -

WHETHER SUCH PERMISSION AMOUNTING TO MA-

TERIAL CONTRAVENTION OF DEVELOPMENT PLAN -

Local Government (Planning and Development) Act 1963,

s.27 Local Government (Planning and Development)

Regulatoions 1977, Article 15

On 12 May 1989, the applicant company

sought planning permission for a bulk LPG

Depot. The appropriate fee was not paid by

the company until 30 June. The company

then made enquiries as to the processing of

the application. On 31 August 1989, the

Council wrote to the company to suggest a

meeting concerning the safety aspects of the

application. A meeting took place on 6 Sep-

tember 1989, during which the company

discovered for the first time that the plans it

had submitted with the application omitted

details concerning thermal insulation. De-

tails of this were furnished on 8 September

1989. The planning application was refused

on 10 November 1989. It was agreed that this

decision reached the company within 2

months of the company supplying details of

the thermal insulation, but the company sought

a declaration that a default permission must

be deemed to have been issued on 30 August

1989, 2 months after the appropriate fee was

lodged by the company.

HELD

by Barron J: (1)

the company's notice for planning permis-

sion complied with Article 15 of the 1977

Regulations since it referred to the physical

'nature and extent' of the development and it

was not required to specify the possible or

even probable consequences of such devel-

opment.

Keleghan v Corby

(1977) 111 ILTR

144 distinguished; (2) since the Council did

not serve any notice on the company under

s.27 of the 1963 Act, the time period for a

default permission began on 30 June 1989,

and thus a default permission was granted on

30 August; (3) a default permission is permis-

sion to carry out the development in accord-

ance with the original plans submitted.

Readymix (Eire) Ltdv Dublin County Council

(Supreme Court, 30 July 1974) applied; (4)

since the company had failed to submit ther-

mal insultation plans with its original applica-

tion and the Council's Fire Officer had indi-

cated that such an application would not

conform to the requirements of the 1981 Act,

the default permission in the instant case was

not valid because it would constitute a mate-

rial contravention of the the Council's devel-

opment plan, which required compliance

with the 1981 Act.

Sun Fat Chan v Osseous Ltd Supreme Court

30 July 1991

PRACTICE - ACTION - DISMISSAL - ADMITTED FACTS -

WHETHER CLAIM COULD SUCCEEDWHETHER CLAIM

SHOULD BE DISMISSED AT STAGE OF DELIVERY OF

STATEMENT OF CLAIM - ACTION IN CONTRACT

The plaintiff instituted proceedings claiming

specific performance of a contract with the

defendant company for the sale of land. The

contract was subject to the plaintiff, as pur-

chaser, obtaining planning permission, within

six months, for the erection of a single dwell-

ing on the land. Permission within the stated

period was not sought. Some time later the

plaintiff successfully obtained, with the en-

couragement of the defendant, planning per-

mission but this was revoked by An Bord

Pleanala on appeal by a third party. The

defendant then rescinded the contract of sale.

In the High Court, the defendant sought to

have the plaintiff's proceedings dismissed on

the ground that, on the admitted facts, the

plaintiff could not succeed. The plaintiff ar-

gued that the right to rescind was vested in the

plaintiff only. Blayney J rejected this argu-

ment and dismissed the action on the ground

put forward by the defendant. On appeal by

the plaintiff to the Supreme Court, the plaintiff

did not rely on the ground put forward in the

High Court but argued that, since the defend-

ant had encouraged the plaintiff to seek plan-

ning permission outside the time limit speci-

fied in the contract, the defendant should not

be entitled to rely on the right to rescind stated

in the contract.

HELD

by the Supreme Court

(Finlay CJ, Hederman, McCarthy, O'Flaherty

and Egan JJ) dismissing the appeal: (1) since

the plaintiff had not questioned the inherent

jurisdiction to dismiss a claim at the stage of

the delivery of a statement of claim, the Court

should proceed on the basis that such juris-

diction existed; but in any event it should be

exercised with caution, and the Supreme

Court should be prepared to take into consid-

eration arguments by a plaintiff which were

not raised at first instance even if they might

have been.

Barry v Buckley

[1981] IR 306

referred to; (2) the plaintiff's argument on

appeal required the court to imply a term into

the contract between the parties, but since it

could not be said that such a term would have

been agreed to by the defendant as vendor at

the time the contract was made, the court