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GAZETTE
unreasonable and also that the
requirements of general condition (a)
were impossible to fulfil and incapable
of performance within the stated
period of 40 days. For these reasons
they refused to accept the terms on
which the I.P.B.S. loan was granted
and relied on Clause 4 in their refusal
to complete the sale with the Vendor.
The Plaintiff claimed that it was an
implied term of Clause 4 of the Special
Conditions that the loan approval
should have been granted on
reasonable terms but it was not, for
the above reasons. The Defendants
claimed that the terms of Clause 4 of
the contract were fully, reasonably
and adequately satisfied by the issue
of the loan approval by the I.P.B.S.
and that the Plaintiffs should have
accepted the loan offered, and should
have completed the sale. The
Defendant's solicitor, having served a
completioin notice on the Plaintiffs,
subsequently notified the Plaintiffs
solicitor in writing that the Plaintiff's
deposit of £4000 was then absolutely
forfeited to the Defendant. The
Plaintiffs then issued proceedings for
the return of the deposit.
Held
(per Ellis J.), having considered
Rooney
v.
Byrne [
1933] I.R. 609 and
Lee Parker v. Izzet(
No. 2) [1979] 1
W.L.R. 775 and
Richard West &
Partners (Inverness) Limited and
Anor. v. Dick [1969J I All E.R. 943,
and following
Rooney v. Byrne:
(1) That Clause 4 was subject to the
implied terms that the conditions of
the loan approval mentioned therein
were and are subject to the implied
term that they should be reasonable,
and that these conditions should
reasonably have been within the
contemplation of the parties when the
contract was made; and
(2) That Clause 4 should be subject
to the further implied term that the
Plaintiffs were under the obligation at
all times to act reasonably and to take
and make all reasonable steps and
efforts to fulfil and carry out the
conditions of the loan approval; and
that onus of proof was on the Plaintiff
purchaser to show that the conditions
of
the
loan
approval
were
unreasonable, and that the Plaintiffs
had acted reasonably and had made
reasonable efforts to fulfil and carry
out the conditions of the loan
approval.
Having heard the evidence on the
facts the Court concluded that it
indicated an unreasonable lack of
effort and desire by the Plaintiffs to
implement the conditions of the loan
approval, to avail of the opportunity
which became available to them for
this purpose, and thereby to seek or
obtain approval for the loan according
to the obligations under Clause 4 of
the Special Conditions. The Court
found that the conditions of the loan
approval were not unreasonable and
that they were as should have been in
the contemplation of the Plaintiffs
acting reasonably. Plaintiffs claim
failed and order made declaring that
the Defendant had validly forfeited the
£4000 deposit.
Brian Draisey and Another v.
Fitzpatrick High Court (per Ellis J.)
10 December 1980 unreported.
MISREPRESENTATION
Principles necessary to establish
liability for negligent or non-
fraudulent misrepresentation laid
down — dismissal of claim on the
grounds that the Plaintiff was not the
person to whom representations were
made.
The Plaintiff claimed that in March
1973 he sought the services of the
Defendants, as auctioneers, to advise
him on the purchase of a property
suitable as a residence which would be
a sound investment available for
immediate re-sale at a profit. He
alleged
that
the
Defendants
introduced him to a property at
Celbridge, County Kildare which he
was induced to purchase for the price
of £70,000 on the Defendants
representation that it was a first-class
investment suitable for his purpose
and that it could be re-sold at a
substantial profit. The property was
eventually sold by the Plaintiff in
November 1975 for £50,000.
The Defendants denied that they
were retained by the Plaintiff as his
auctioneers at the time and alleged
that they were, in fact, instructed by
the Plaintiffs brother. They alleged
that they did not give any particulars
or advice or make any representations
to the Plaintiff who did not come into
the picture until December 1973 when
his name was substituted for that of
his brother in the contract on the
execution thereof. The Plaintiffs
brother did not give evidence and no
note or memorandum of any
agreement between the Plaintiff and
his brother was produced in evidence.
The Court referred to the cases of
Hedley Byrne & Company
v.
Heller
119631 2 All E.R. 575 and 11964]
A.C. 465,
Esso Petroleum Company
v. Mardon
[1976] 2 W.L.R., 583,
Derry v. Peak
(14 App. Cas. 337) and
Securities Trust Limited v. Hugh
Moore
and Alesander
Limited
11964] I.R. 417. In the course of his
judgment Doyle J. adopted the
principles laid down by Davitt P. in
the last mentioned case that in order to
establish liability for negligent or non
fraudulent misrepresentation giving
rise to action:—
1. There must first of all be a person
conveying the information or the
misrepresentation relied upon.
2. There must be a person to whom
that information is intended to be
conveyed or to whom it might
reasonably be expected that the
information would be conveyed,
and
3. That person must act upon such
information or representation to
his detriment so as to show that he
is entitled to damages.
Held
(per Doyle J.) dismissing the
Plaintiffs claim, that on the evidence
furnished to the Court the Plaintiff
had
personally
received
no
representations from the Defendants
upon which he acted to his detriment
or suffered damage and that any
liability on the part of the Defendants
would not extend to the Plaintiff, even
if the Plaintiff was aware of the nature
of his brother's transactions with the
Defendants in relation to the property.
PJ.D. Stafford v. Denis Mahony &
Others — High Court (per Doyle J.)
— 21 March 1980 unreported.
Summaries of Judgments prepared
by:
John F. Buckley,
Ian Scott,
Sarah Cox
and edited byGary V. Byrne.
xxxii