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GAZETTE
JULY-AUGUST
1979
interest therein". The husband
executed the Statutory Declaration
and the sale was closed on the 17
August 1976.
In April 1977 the Plaintiff having
improved the Artane house agreed to
sell it for £10,800. The purchaser's
building society solicitors sought
proof that Section 3 of the Family
Home Portection Act ("the Act of
1976") had not been breached, but
the Defendant refused to give a
retrospective consent. The Plaintiff
sought an order under Section 4 of
the Act of 1976 dispensing with the
Defendant's consent. The High
Court (per Doyle J.) held that the
Defendant's
consent
was
not
necessary
and
the
defendant
thereupon appealed to the Supreme
Court.
The question for determination by
the Court was whether the Plaintiff
was an assignee "who in good faith
acquired an estate or interest in the
property", as provided by Section 3
(6) of the Act of 1976. Having
reviewed the history of the doctrine
of notice and noted the extension of
the doctrine of Constructive Notice
effected by the amendment of Section
3 of the Conveyancing Act 1882 by
Section 3 (7) of the Act of 1976, the
Court considered whether on the
facts of the case the Plaintiff ought
reasonably through her solicitor have
ascertained the fact that the
Defendant had a prima facie valid
proprietary interest in the family
home which the Defendant's husband
was selling. The Court, noted that the
Statutory Declaration prepared by
the
Plaintiff's
solicitors
was
inaccurate in fact and unfounded in
law, having been prepared without a
sight of the Separation Agreement,
and that the Plaintiff's solicitors had
allowed themselves to be fobbed off
with the excuse that the Separation
Agreement could not be supplied
because of the FLAC Law Centre
holidays.
Held
(per Henchy J.) that the true
facts both as to the contents of the
Separation Agreement and as to the
existence
and
nature
of
the
Defendant's claim would have come
to the Plaintiff's knowledge if such
"enquiries and inspections had been
made as ought reasonably have been
made" and that what the Plaintiff
acquired was not acquired in good
faith. The
assurance
by
the
Defendant's husband to the Plaintiff
was therefore void.
Sandra Somers v. Sheila Margaret
Weir — Supreme Court (per Henchy
J., with Griffin and Parke JJ.) — 14
February 1979 — unreported.
CONTR I BUT I ON
—
CIVIL
LIABILITY ACT 1961
Failure to serve third party notice
does
not
necessarily
preclude
independent claim for contribution
under Civil Liability Act 1961.
The
Plaintiffs
manufactured
pharmaceuticals and chemicals in a
factory in Innishannon, Co. Cork and
the plant at the factory included
fermenting tanks which were supplied
to the Plaintiffs by the Defendants. In
December 1975 an accident took
place in the factory which injured one
of the Plaintiffs' employees who
brought an action for damages
against the Plaintiffs alleging that by
reason of the negligence and breach
of statutory duty of the Plaintiffs, a
cover blew off one of the fermenting
tanks and caused his injuries. That
action was settled before hearing in
July 1977, and Judgment was
entered against the Plaintiffs by
consent for £17,500 damages and
costs.
The Defendants were not aware of
the accident or of the action by the
injured employee until they received a
letter in August 1977 from the
Plaintiffs'
Solicitors
claiming
indemnity on the ground that the
cause of the accident was a design
fault in the tank. The Defendants
rejected the claim, relying on Section
27(1) (b) of the Civil Liability Act
1961 which they contended required
that any claim against them should
be made by third party procedure
during the currency of the injured
person's action.
When the Plaintiffs issued a
Plenary
Summons
against
the
Defendants claiming damages for
negligence and breach of contract in
the design, supply and installation of
the fermenting tank, the Defendants
brought a motion claiming an Order
under O. 12, r. 16, of the Rules of
the Superior Courts 1962 setting
aside the service of the Plenary
Summons. It was agreed between the
parties that the matter be dealt with
on the basis that the Plenary
Summons included a claim for
contribution and that the application
be brought under O. 19, r. 28 of the
Rules of the Superior Court to strike
out the Plenary Summons on the
ground that it disclosed no cause of
action.
McMahon J. concluded that the
provisions of Section 27(1) (b) of the
Civil Liability Act required a
Defendant to serve a third party
notice where it was possible for him
to do so; and he is then precluded
from proceeding for contribution
except under the third
party
procedure, and the Court has a
discretion to refuse an Order for
contribution if a third party notice
has. not been served as soon as was
reasonably possible. It would not be
possible for a Defendant to serve a
third party notice if the evidence
which might support a claim for
contribution was not discovered until
the injured party's action had been
disposed of. In such a case a
Defendant could pursue by a
separate
action
a
claim
for
contribution. Consequently, where
the Court refused a Defendant liberty
to serve a third party notice, he
should be free to bring an
independent action for contribution
and should not be bound by the
condition requiring service of a third
party notice where it was impossible
for him to comply with it.
(Gilmore v.
Windle
[1967] I.R. 323). In this
action it was admitted that the
Plaintiffs could have served a third
party notice in the course of the
injured person's action.
Held
(per McMahon J.) that the
Plaintiffs were now precluded from
claiming contribution but were not
precluded from claiming damages for
negligence or breach of contract.
Those damages might be an
indemnity for the damages and costs
recovered by the injured person or
might be that amount but reduced
because of contributory negligence.
The Plenary Summons however
disclosed a cause of action and the
motion to strike out was accordingly
dismissed.
A & P (Ireland) Limited v. Golden
Vale Products Limited, trading as
Golden Vale Engineering — High
Court (per McMahon J.) — 7
December 1978 — unreported.
SALE OF LAND — RECEIVER
Validity of Attestation of the Seal of a
Company by the Receiver — Validity
of Execution by Receiver of Deed as
Attorney for Company.
This case arose out of an application
against a refusal by the land registry
to register a transfer of a Co. Cork
Folio of which the Cork Shoe
Company Limited ("the Company")
was the registered owner and the
Bank of Ireland ("the Bank"), the