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GAZETTE
JULY-AUGUST
1979
Housing Acts it was intended to use
the lands for, if they were finally
acquired.
Held
(per Finlay P.) that the
purpose of the obligation on the
Planning Authority is to set out in
their notification of a refusal the
reasons for the decision was firstly to
give the information that may be
necessary and appropriate for the
applicant to consider whether he has
a reasonable chance of succeeding in
appealing against the decision and,
secondly, to enable the applicant to
arm himself for the hearing of such
appeal. The reasons need not be set
out with the precision of a Court
order nor need they necessarily
contain any words of a technical
nature nor refer in any formal way to
any of the provisions of the Housing
Acts. It was clear that the prose-
cutor had at no time been in doubt as
to what C.P.O. was referred to in the
notice of refusal. If land is acquired
for any one or more of the purposes
set out in Section 55(3) of the
Housing Act, 1966, then quite
clearly the carrying into effect of that
purpose either immediately or in the
future affects in general terms the
planning and development of an area
and it followed from this that the
compulsory acquisition of land by a
Housing Authority pursuant to the
Housing Act, 1966, was not a mere
change of ownership. Application for
absolute Order of Certiorari refused.
The State (Patrick Sweeney) v. The
Minister for the Environment and
Limerick County Council - High
Court (Finlay P.) - unreported - 12
February 1979.
SALE OF LAND
Action for Specific Performance —
Discharge of Lis Pendens.
The Defendant applied to have
vacated a lis pendens registered by
the Plaintiffs against lands the subject
matter of an action by them for
specific performance of an alleged
contract, for the sale of lands. The
Defendant also sought to have the
Plaintiffs' proceedings struck out.
The Defendant had put up lands
for auction on the 18 July 1978 and
the Plaintiffs gave a cheque for
£95,000 by way of deposit but it was
dishonoured and returned to the
Defendant's solicitors by letter from
their bank dated the 25 July 1978.
The contract for sale contained the
following provision :-
" 3 " The failure by the purchaser
to pay in full the deposit hereinbefore
specified as payable by him shall
constitute a breach of condition
entitling the vendor to terminate the
contract or to sue the purchaser for
damages or both."
On the 27 July 1978 the Plaintiffs'
solicitor was notified, both by
telephone and letter delivered that
day, that if the deposit was not paid
by 5 p.m. on that day the Defendant
would terminate the contract. The
P l a i n t i f f s' s o l i c i t or d id n o t
communicate with the Defendant's
solicitors either on the 27 or 28 July
1978 and the Defendant's solicitors
by letter of the 28 July 1978
terminated the contract under the
provisions of condition 3, (quoted
above).
The Plaintiffs' solicitor alleged that
on the 31 July 1978 the Defendant's
auctioneers agreed to waive the
necessity for payment of the deposit
until the 4 August 1978. This was
disputed on behalf of the Defendants.
On the 4 August 1978 the Plaintiffs'
solicitor telephoned the auctioneers
and advised them that the deposit
was available. At a meeting held that
day between the Plaintiffs' solicitor
and the Defendant's solicitors a
dispute arose as to the interest to
accrue on the deposit and the
Defendant's solicitors refused to
accept the deposit or renew the
agreement for sale. The Plaintiffs'
solicitor tendered the deposit to the
auctioneers who also refused to
accept it.
A plenary summons was issued on
behalf of the Plaintiffs and a lis
pendens registered against the
property. On the 10 August 1978
the De f endan ts entered into a
contract for the sale of the property
to another purchaser for £946,000.
It was argued on behalf of the
P l a i n t i f fs t h at t he re was no
jurisdiction to discharge a lis pendens
without the consent of the Plaintiffs
as it was argued that the Lis Pendens
Act 1867 did not apply to Ireland
and that in any event that Act only
applied where an action was not
being bona fide prosecuted and it was
sought to make a distinction between
not prosecuting an action bona fide
or with diligence after it had been
commenced and the bona fides of its
institution.
Held
(McWilliams J.): having
referred to
McDonnell v. McDonnell
42 I.LkT.R. 212 and
Giles v. Brady
[19741 I.R. 402 and to an Order of
the Supreme Court dated 28 July
1975 in a case of
Glencourt
Investments
Limited
(where the
Supreme Court directed a lis pendens
to be vacated apparently while an
appeal to that Court was still
pending) and having decided that the
Lis Pendens Act 1867 (Section 2)
and the Judgments Registry (Ireland)
Act 1871 (Sec t i on 21) were
applicable, that the High Court had
jurisdiction to vacate a lis pendens
without the consent of the person by
whom it was registered. The Court
further held that there was no
distinction between commencing and
continuing an action bona fide and
was satisfied that the expression
"bona fide prosecute" covered both
the institution and the continuation of
proceedings. It was ordered that the
lis pendens be vacated.
Patrick M. Culhane & Veronica B.
Culhane v. David P. L. Hewson —
The High Court (McWilliam J.) -
unreported - 20 October 1978.
WILL — ANIMUS TESTANDI
Undue influence - whether a Will
should be condemned on the grounds
that it had been obtained by undue
influence — burden of p r oo f.
Knowledge and approval — whether
it was established that the deceased
knew and approved of the contents of
a Will — burden of proof. Suspicious
circumstances.
The deceased, Patrick Kavanagh,
died on 14 December, 1972, aged 75
years. A bachelor, he lived with his
cousin, the Plaintiff, Annie Healy, up
to the time of his death. He had
carried on a successful dairy business
in County Dublin until 1969 when he
retired. He had been able to save
quite a considerable sum of money
and, in addition, he owned invest-
ment property in Walkinstown and
12 acres of valuable land in Tallaght.
The Plaintiff had come to live with
the deceased and his sister from the
age of 23, many years before his
death. She helped in the dairy
business and acted as housekeeper
for the deceased until he died. She
was never paid any wages. A strong
bond of affection existed between the
Plaintiff and the deceased.
The second Defendant, Laurence
Lyons, a cattle dealer, first got to
know the deceased well after selling
him a house in the early 1960's. He
was a much younger man than the
deceased.
The deceased made a Will on 22
September, 1965, in which he