The Gazette 1979

GAZETTE

MAY 1979

There was some difficulty in the

preparation of the map and the

Christmas holidays intervened.

Eventually the contract was sent out

on the 13 January 1978 which was a

Friday, with an accompanying letter

which said:—

"On the instructions of our clients,

this offer remains open for

acceptance by your clients for a

period of seven days only from the

date of this letter and we are

instructed that, if the contract is

not back with us within the said

period of time, duly executed, the

offer is deemed to be withdrawn".

It did not reach the Plaintiffs

solicitors until the following Tuesday,

the 17 January 1978 and was then

forwarded by them to the Plaintiff

who was working in Cork and it did

not reach him until after the period of

the seven day ultimatum had expired.

Although he had sent word to the

Vendors on the 25 January 1978

that he was willing to sign the

contract the Vendors said that by

failing to sign and return it within the

seven days of the 13 January 1978

he had forfeited his right to buy the

land.

The Plaintiff brought proceedings

for specific performance of the

contract and in the High Court,

Hamilton J. granted an order for

specific performance. The defendants

appealed to the Supreme Court.

Held

(per Henchy J.) that the letter

of the 19 December 1977 from H.W.

to M.L. constituted the necessary

note or memorandum in writing

required to comply with the Statute

of Frauds. It contained not only all

the essential terms of the contract but

also a recognition that a contract had

been made. Since the (High Court)

Judge, having heard all evidence, held

that the oral agreement recorded in

that letter was a completed

agreement in the sense that nothing

further was left to be negotiated, the

words "we have agreed terms subject

to contract" must be taken to mean

that a contract had been made

subject to it being formalised in

writing.

Held

further that the delay in

signing the contract was not the

Plaintiff's fault. The Defendants

allowed from 19 December 1977 to

13 January 1978 to pass before even

sending out a contract. When the

solicitors sent it out they coupled it

with a requirement that it be signed

and returned within seven days which

in the circumstances was less than

the period within which this

requirement

could

even

communicated to the Purchaser. A

Court exercising an equitable

jurisdiction could not allow a .vendor

by such an unreasonable and

unilateral act to escape its

obligations.

Patrick Kelly v. Park Hall School

Limited — Supreme Court (per

Henchy J. with Kenny and Parke

JJ.) -

7 December 1978

unreported.

SALE OF LAND - SPECIFIC

PERFORMANCE

Sale of Land — Specific Performance

— Agreement Typed on Auctioneers'

headed notepaper deemed to be

"Note or Memorandum in Writing'*.

The third and fourth-named

Defendants ("the owners") were in

1976 the proprietors of a house and

120 acres near Mallow, Co. Cork.

They had given an equitable

mortgage of the house and lands to

the second-named Defendants ("the

Northern Bank") and subsequently

gave a legal mortgage (dated 14

November 1975) and a power of

attorney (dated 11 February 1975)

to the

first-naiped

Defendants

("Intercontinental") under which

Intercontinental, who were at all

times aware of the equitable

mortgage held by the Northern Bank,

could sell lands.

In 1975 the owners were being

pressed by their creditors and decided

to sell the lands by auction. The

auction was conducted by O'Keeffe

O'Sullivan

Limited

( " t he

auctioneers") in November 1975

when the highest bid was £86,000,

which the owners would not accept.

The Plaintiff, who had attended the

auction, was anxious to buy the

lands and in January 1976 went to

see the auctioneer who asked

£150,000 for the lands but it was

subsequently agreed on Friday, 30

January 1976 that the auctioneers

would put an offer of £110,000 to

the owners and get their authority to

sign a contract. On Saturday, 31

January 1976, the auctioneers tele-

phoned the Plaintiff and said "You

are the owner of Park House. The

farm is yours." It was arranged that

the Plaintiff would come into the

Auctioneers' Mallow office on the

following Monday, 2 February 1976,

to sign the contract and to pay the

deposit. On Monday, 2 February

1976, the auctioneers decided to draw

up a written contract and get it aigned

by the Plaintiff. It was dictated to a

secretary who typed it on the

auctioneers' headed notepaper and it

read as follows:

O'KeefTe ft O'Sullivan U n t y d .

Auctioneers Valuers ft Estate

Agents

I, Patrick Casey, Gurrane House,

Dunoughmore agree to purchase

Park House and lands for

£110,000.00 subject to contract

and title. I agree to pay

£25,250.00 as deposit,

(signed) Patrick

Casey.

Directors: A.

O'Keeffe, J. L.

O'Sullivan.

The names of the two auctioneer

directors on the heading were printed.

The words "subject to contract and

title" had not been used during the

meeting on Friday, 30 January 1976

or the telephone conversation on

Saturday, 31 January 1976. The

Plaintiff signed this document and

then gave the auctioneers a cheque

for £2.250 but asked them not .to

present it for some time as he wanted

to make arrangements for a loan to

enable him to have funds so that the

cheque would be paid when presented

and that he could complete the

purchase. The auctioneers then gave

the keys of the property to the

Plaintiff who retained them and

produced them at the High Court

hearing. The document signed by the

Plaintiff was not signed by the

auctioneers. Subsequently, the

Plaintiff on his solicitor's advice went

to the auctioneers who had the

cheque and on the back of the cheque

the auctioneers at the Plaintiff's

request wrote the words: "Subject to

title and contract; Deposit on Park

House, Mallow, Co. Cork*" and the

Plaintiff and Mr. O'Sullivafr of the

auctioneers signed their names. The

Plaintiff had not succeeded in getting

a loan to meet the cheque for the

deposit up the 20 February 1976 and

the auctioneers had made enquiries

as to whether the cheque would be

paid when presented and had been

informed that there were no funds to

meet it and no arrangements made to

deal with it. On the 20 February

1976 the auctioneers, who wanted

the sale to go through, suggested that

the amount of the deposit be reduced