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GAZETTE
JULY-AUGUST
197
alcoholism in 1972 and in early 1974
was diagnosed as an alcoholic,
although the doctor was of the
opinion that the Plaintiff had been
suffering from this complaint for
some two or three years and,
furthermore, that he was suffering
from anxiety depression. There was,
however, no evidence that these
conditions existed at the time the
contract was signed in August, 1968.
Also, notwithstanding that
the
Plaintiff had a steady job and an
income from the yard attached to the
dwellinghouse where he resided in
addition to some £2,000 from the
deceased's Estate, it was clear that he
was in need of money. However, it
was equally clear that the Plaintiff in
no way suggested to the Defendant
that he was in urgent need of money
nor that the Defendant sought to take
advantage of the seller's infirmity or
his straitened
financial
circum-
stances.
The Court, in considering the
question that the transaction between
the Plaintiff and the Defendant was a
sale by a cestui que trust to a trustee,
referred to the following statement
from Lewin on Trusts (16th ed. pp.
697/698):
"While a purchase by a trustee
conducting
the
sale,
either
personally or by his agent, cannot
stand, a purchase by a trustee
from a cestui que trust of the
interest of the latter in the trust
may stand, if the trustee can show
that the fullest information and
every advantage were given to the
cestui que trust. However, a
purchase by a trustee from a
cestui que trust is at all times a
transaction of great nicety, and
one which the Courts will watch
with the utmost jealousy and will
set aside if the consideration was
insufficient".
It is thus clear that the onus of
proving the bona fides of the transac-
tion was on the Defendant and one
had to ascertain whether any unfair
advantage was taken by the Defen-
dant in his dealings with the Plaintiff.
The Court found that the Defendant
had paid what he considered was a
fair price for the land, and the price
was in fact a fair one. The Defendant
had no knowledge about its value of
which the Plaintiff was also ignorant,
and the Defendant made no effort
either to take advantage of his special
position as trustee or to influence the
Plaintiffs decision to sell. As to
whether the Defendant owed a duty
to the Plaintiff to ensure that he
obtained professional advice of some
sort, it was clear that when this
bargain was struck, albeit in a casual
and informal way, the parties
envisaged that a formal contract
would be required. The Defendant
was, therefore, aware that the
Plaintiff would have available to him
the advice of a solicitor before such a
formal contract was executed. Thus,
the Plaintiff did have available to him
the benefit of a solicitor's advice
before he signed the contract. It is
clear that the Defendant gave no
thought to whether that legal advice
was independent (i.e. from a separate
solicitor), but the Court found that
the solicitor in question was an
experienced
one and
had
he
considered that separate advice was
necessary he would have so advised
the parties. The solicitor in question
did not so advise and in view of the
fact that he had been aware of the
value of this land as sworn for
probate purposes (i.e. £2,400) he did
not consider the transaction an
improvident one from the Plaintiffs
point of view.
Held
(per Costello J.) that even
though the deed of transfer was not
executed until August 1973 by which
time the land had increased in value,
this did not affect the Defendant's
duty to the Plaintiff. A valid contract
had been entered into in August 1968
and the Plaintiff was legally bound by
it and the delay in completion did not
impose any new obligations on the
Defendant.
Held
further that the transaction
was not vitiated by undue influence.
The Defendant did not attempt to
influence the Plaintiffs decision and
the Plaintiff had freely and with an
independent will entered into the
bargain with the Defendant.
Held
finally, having considered the
equitable
principles relating
to
unconscionable bargains and that
equity comes to the rescue whenever
parties to a Contract have not met on
equal terms, that the Plaintiff was not
suffering from any physical or mental
infirmity when the contract was
entered into in 1968 and that even
though by the time the transfer was
executed in 1973 the Plaintiffs
health had deteriorated, if the
contract he had entered into was a
legally valid one then this subsequent
deterioration of his health would not
invalidate it or entitle him to set aside
a deed of transfer which it was his
legal obligation to execute. In view of
this and in view of the fact that the
sale was not at an under-value the
various attacks mounted on this
transaction failed.
Frederick W. Smyth v. Thomas
Smyth - High Court (Costello J.) -
unreported - 22 November 1978.
PLANNING AND
DEVELOPMENT
Validity of Grounds for Refusal of
Permission — Premises subject to
Compulsory Purchase Order under
Housing Act, 1966.
On the 27 June 1978 and by a
renewed application on 14 August
1978 the prosecutor (Patrick
Sweeney) applied to Limerick County
Council for planning permission to
erect 13 dwellinghouses on a plot of
land at Glin. By a decision, notifi-
cation of which was issued on 22
September 1978, the County Council
refused the permission for the
following reasons:
"The site formed part or all of an
area in respect of which a
compulsory purchase order has
been made by the Limerick
County Council. This proposal for
development is therefore pre-
mature pending the determination
of this order by the Minister for
the Environment."
Limerick C.C. had purported to
acquire the lands for the purposes of
the Housing Act, 1966, and the
prosecutor having objected to the
making of the C.P.O. the Minister for
the Environment had on 16 August
1978 ordered a public enquiry to be
held concerning the making of the
order. The prosecutor's submission
was that the Planning Authority in
considering an application for
permission for development was
confined
to
considerations
concerning the proper planning and
development of the area and that the
mere making of a C.P.O. was a
change of ownership only and that,
without further details, the purpose
for which it was intended to use the
lands if the C.P.O. was confirmed did
not indicate any question concerning
the proper planning and develop-
ment of the area. The prosecutor also
relied on the fact that the terms of the
refusal did not indicate that the
C.P.O. was for the purpose of the
Housing Acts and did not set out
which of the many purposes of the