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GAZETTE
SEPTEMBER 1992
children. The wife remained full-time in the
home, and contributed a substantial amount
of time to the refurbishment of the family
home. She made no direct or indirect finan-
cial contribution to the refurbishment or to
the farming activities in which the husband
engaged. The wife instituted proceedings for
divorce a mensa et thoro, for alimony and
also for orders under the Married Women's
Status Act 1957 claiming a beneficial interest
in the family home and farm. In the High
Court, Barr J granted the decree of divorce a
mensa et thoro and al imony. He also awarded
her a 50% share in the beneficial ownership
of the family home, having regard to Article
41.2 of the Constitution: [1989] ILRM 528.
On appeal by the husband in relation to the
beneficial ownership only
Held
by the Su-
premeCourt (Finlay CJ, Hederman, McCarthy,
O'Flaherty and Egan JJ) allowing the appeal:
Article 41.2 of the Constitution did not justify
the conclusion of the trial judge that the wife
was entitled to a 50% beneficial ownership in
the family home; and such conclusion was an
unwarranted development of the doctrine by
which a spouse, whether through direct or
indirect money contributions, could obtain a
beneficial ownership by way of constructive
trust.
Per curiam:
it was permissible for the
Oireachtas, in order to give effect to the
provisions of Article41.2.2 thata wife should
not be obliged to engage in work outside the
home to the neglect of her duties in it, to
legislate that a beneficial ownership could be
declared in judicial separation proceedings,
as in the Judicial Separation and Family Law
Reform Act 1989.
N.(E.) v N.(R.) and Anor Supreme Court
Supreme Court 5 December 1991
FAMILY — HUSBAND AND WIFE — PROPERTY —
TRUST — WIFE CONTRIBUTING TO FAMILY FUND
THROUGH REMAINING AT HOME—WIFE ALSOMAN-
AGING SOME BUSINESS AFFAIRS IN HOME —
WHETHER GIVING RISE TO BENEFICIAL INTEREST IN
HOME — RESULTING OR CONSTRUCTIVE TRUST —
Constitution, Article 41.2.
The plaintiff, a widow, instituted proceedings
against the executors of her husband's estate
claiming entitlement to a beneficial interest in
the family home. After she and her husband
had married, she gave up nursing and de-
voted her time to looking after the home and
three children of the marriage. The family
home was bought from the husband's re-
sources and was in his sole name. A sum of
£5,000 was borrowed to convert part of the
house into bedsitters for letting. These bedsit-
ters, nine in all, were managed by the plain-
tiff. The borrowed sum was paid off out of the
rent received from the bedsitter tenants. A
further sum of £15,000 was borrowed to
build a two storey extension to the house. On
the husband's death, this loan was paid off by
virtue of the endowment policy. In the High
Court, Barron J held that the plaintiff's contri-
bution as mother in the home did not entitle
her to any beneficial share in the house
pursuant to Article 41.2 of the Constitution,
but he found she was entitled to a 15% share
arising from her management ofthe bedsitters
and the contribution this made to the repay-
ment of loans: (1990] 1 IR 383. On appeal to
by the plaintiff
Held
by the Supreme Court
(Finlay CJ, Hederman, McCarthy, O'Flaherty
and Egan JJ) allowing the appeal: (1) the High
Court had been correct in deciding that the
plaintiff was not entitled to any beneficial
interest in the family home by virtue of Article
41.2 of the Constitution.
L v L
(Supreme
Court, 5 December 1991) (supra) applied; (2)
the High Court was correct in concluding
that, in the absence of an express agreement
between husband and wife, money contribu-
tions by the wife to improvements made in
the family home would not entitle the wife to
a beneficial interest in the family home. Dicta
in
W v W
[1981] ILRM 202 applied; (3)
having regard, however, to the substantial
contribution made by the plaintiff to the re-
payment on the loans taken out on the prop-
erty arising from her management of the
bedsitter lettings, the High Court had erred in
limiting the plaintiff's beneficial interest in
the family home to 15%, and the correct
portion to which she was entitled was 50%.
Dicta in W v IV [1981 ] ILRM 202 applied.
A.I.F. Ltd v Hunt and Hunt High Court 21
January 1991
HIRE-PURCHASE — MEMORANDUM OR NOTE — IN-
ACCURATE STATEMENT OF PRICE — INACCURACY
KNOWN TO DEALER AND HIRER BUT NOT TO FI-
NANCE COMPANY — WHETHER JUST AND EQUITA-
BLE TO DISPENSE WITH REQUIREMENTS OF LEGISLA-
TION — PRACTICE — APPEAL FROM CIRCUIT COURT
— ESTOPPEL — WHETHER ARISING — Hire-Purchase
Act 1946, s.3.
The plaintiff company was the finance com-
pany in relation to a hire-purchase contract
entered into by the defendants as co-hirers.
The note or memorandum required by the
1946 Act overstated the hire-purchase price.
This inaccuracy was known to the defendants
and the dealer involved, but not the plaintiff
company. The plaintiff had required the sec-
ond defendant to enter into the transaction as
co-hirer with the first defendant, his son. The
second defendant directed his bank to repay
the instalments by monthly order. When 17 of
the 36 instalments had been repaid, the sec-
ond defendant countermanded the order. The
plaintiff instituted Circuit Court proceedings
seeking enforcement of the agreement. The
claim was dismissed as against the first de-
fendant but was unsuccessful against the sec-
ond defendant. The second defendant ap-
pealed against the Circuit Court decision; the
plaintiff did not appeal the dismiss against the
first defendant.
Held
by Barron J dismissing
the second defendant's appeal: (1) although,
by virtue of the inaccuracy in the statement of
the hire-purchase price, the requirements of
s.3 of the 1946 Act had not been complied
with, it was just and equitable that the Court
dispense with such requirements having re-
gard to the knowledge of the defendants and
the lack of awareness of the inaccuracy on the
part of the plaintiff; (2) once the second
defendant had appealed by way of re-hearing
to the High Court, all issues debated in the
Circuit Court were open again; and even ifthe
Circuit Court had found that the first defend-
ant had not signed the hire-purchase agree-
ment (and such finding had not in fact been
made since if it had been the plaintiff's claim
against the second defendant could not have
been successful) the plaintiffwas not estopped
in any manner by the dismiss of its claim
against the first defendant in the Circuit Court.
Texaco (Irl) Ltd v Murphy High Court 17 July
1991
LAND LAW — TENANCY OR LICENCE — EXCLUSIVE
POSSESSION — TENANT ENTERING INTO POSSES-
SION ON BASIS OF COMMITMENT THAT TENANCY
WOULD BE PREPARED—GRANTOR NOT INTENDING
TO GRANT TENANCY.
The defendant applied to the plaintiff com-
pany in 1969 to operate as a Texaco retail
outlet on a site he intended to buy. The
company informed him that it would not be
interested in such a proposal but that it would
be looking for tenants for Texaco-owned sites.
In fact, the company did not, at that time have
a practice of granting tenancies but rather
successive three month licences only. The
defendant was successful in entering into
possession of a Texaco-owned site. On entry,
he was informed that a tenancy agreement
was being drawn up, but he also signed an
agreement acknowledging that the arrange-
ment with the company was for a three month
licence. A number of further agreements were
signed by the defendant over the years, but no
tenancy agreement was ever produced. In
respect of some of the later agreements, the
defendant objected to the form of the docu-
ments. The company produced a three year
licence agreement which the defendant re-
fused to sign and it then sought immediate
possession.
Held
by Barron J refusing the
relief sought: although the company had a
policy for not entering into tenancy arrange-
ments, the defendant in the instant case had
entered into possession on the basis that he
would at some stage be granted such a ten-
ancy and having regard to the exclusive pos-
session enjoyed by him such a tenancy must
have come into effect and the plaintiff was not
therefore entitled to possession.
Irish Shell &
BP Ltd v } Costello Ltd
[1984] IR 511 distin-
guished.
Smith v Ireland and Ors High Court 14
February 1991
PRACTICE — COSTS — COUNSEL'S FEES—WHETHER
SOLICITOR MAKING INDEPENDENT JUDGMENT AS
TO LEVEL OF FEE — SOLICITOR NOT AVAILABLE TO
GIVE DIRECT EVIDENCE COUNSEL HAVING DIED —
CLIENT INFORMED — WHETHER SPECIAL FEE — PRE-
TRIAL OPINION —WHETHER JUSTIFIABLE — Rules of
the Superior Courts 1986, o.99, r.37(18).
The plaintiff had instituted civil proceedings
arising from his arrest under s.30 of the Of-
fences against the State Act 1939, claiming
damages for slander, wrongful arrest, false
imprisonment, negligence and failure to vin-
dicate his constitutional rights. The trial of the
action lasted 5 days. It appeared that the
Gardai thought that the plaintiff was another
person. The trial judge put two questions to
the jury,the first being whether the plaintiff
had been arrested as 'Kevin Walsh', to which
the jury answered 'Yes', and, secondly, if the
first question was answered in the affirmative,
to assess damages which the jury assessed at
£28,000. On taxation of costs of the action,
the Taxing Master reduced the brief fee al-
lowed to the senior counsel for the plaintiff.
The briefing solicitor for the plaintiff, who had
emigrated to the United States, was unavail-
able to state whether he had exercised an
independent judgment on the level of fee to
be allowed with the leading senior. The lead-
ing senior had since died. The second senior
had understood the fee to have been agreed.
The plaintiff had been informed prior to the
trial as to the level of the fees. The Taxing
Master had also disallowed a pre-trial opin-
ion given by the junior counsel for the plain-
tiff. On appeal by the plaintiff
Held
by Lynch
J allowing the appeal and remitting the case to
the Taxing Master: (1) the Taxing Master had
erred in concluding that the solicitor for the
3