The Gazette 1981

GAZETTE

DECEMBER 1981

Guarantee. The Plaintiffs relied on a

letter dated the 31 December 1976

from the Company to the Plaintiff

which read in part

"as you arc aware this Company

has guaranteed the borrowings

from the Corporation of Mr.

Furscy Quinn. Please let us have

details in confidence, of the

guaranteed borrowings in relation

the

amount

outstanding

including interest, the amount and

timing of repayments made and

interest paid to date"

The Court held that the Plaintiff had

not actcd on the representation

contained

the

letter,

representation it were, and thereby

altered their position to their

prejudice and further held that the

mere fact that the Company had sent

its Memorandum and Articles to the

Plaintiff could not be said to

constitute a representation by the

Company.

Northern Bank Finance Corporation

Limited v. Bernard Fursey Quinn

and Achates Investment Company -

High Court (Kcane J.) —Unreported

- November 1979.

FAMILY LAW

Application under Married Women's

Status Act 1957 and Family Law

(Maintenance of Spouses & Children)

Act, 1976.

The Plaintiff and the Defendant were

married in 1971 and had no children.

They

lived

firstly

rented

aecoinmodation for two years then

l hev purchased a house in the

husband's (Defendant's) name by

raising a mortgage and obtaining a

hank loan guaranteed by the

Plaintiffs father.

The Plaintiff worked until 1976

and

thereafter

the

Defendant

discharged the mortgage repayments

luii not the bank loan; in 1977 the

Defendant had little income but in

1978 had lucrative employment, but

in I 979 his incomc dropped again. A

second mortgage was raised with the

consent of the Plaintiff which was

used to pay the first mortgage

repayments from 1976 to 1978 but

thereafter no mortgage repayments

were made and at the time of the

hearing

the

Building

Society

intimated that proceedings would be

taken for rccovcry of possession.

The Court rejected the submission

that the Plaintiffs contribution from

the date of her marriage to the

purchase of the house should be

taken into account as both parties

incomc was spent on their lifestyle

rather than invested in property or

saved.

Held

per Finlay P.:

The home consists of an equity of

redemption after the discharge of the

two mortgage sums. The parties are

entitled in law to beneficial ownership

of the equity of redemption in the

premises in proportion to the

contributions made from the time of

the purchase to when the parties

ceased to repay the mortgage

themselves i.e. the date when the

second mortgage was used to pay the

first mortgage repayments. To do this

one has to ascertain (a) the gross

earnings of the Plaintiff and the

Defendant and (b) what percentage of

gross earnings were contributed to

the joint family fund out of which the

mortgage repayments were met?

Having made adjustments between

what was earned and what was

contributed to the joint fund by the

parties Finlay P. found that the

Plaintiff contributed 35% and made a

Declaration accordingly.

Maintenance:

Evidence was given

of adulterous relationships by both

parties.

The

Plaintiff is

not

maintained by the person with whom

she has a relationship. She works as a

secretary earning £55 per week while

the Defendant on a short-term

contract earns £600 per month and

£300 allowances per month from

which he receives no profit. The

Defendant pleaded adultery by the

Plaintiff.

l/t'ld

per Finlay P.: Section 5 Sub-

Section 3 of the Family Law

(Maintenance

Spouses

and

Children) Act 1976 applicable.

If the Court is satisfied that the

Spouse against whom maintenance is

claimed has condoned or connived at

or by wilful neglect or misconduct

conduccd to the adultery then it has

no discretion and must order

maintenance provided the other

conditions in the Act of 1976 with

regards to maintenance are fulfilled.

If the Court is not so satisfied it has a

discretion which it may exercise

having

regard

all

the

circumstances including the financial

circumstances of the applicant.

Condoning of adultery held to

mean a co habiting subsequent to the

discovery of the adultery. No

condonation in this case.

Connived at held to mean conduct

on the part of the other Spouse

consisting of a knowledge of the

adultery and failure to make any

remonstrance concerning it or to take

any steps to try and persuade his

partner from continuing with it. No

evidence that the Defendant connived

at the adultery of the Plaintiff.

Wilful neglect or misconduct

conduced to the adultery — the

President had considerable doubt

whether the facts suggested that there

was a wilful neglect of the Plaintiff by

the Defendant conducing to the

adultery but he was satisfied as a

matter of probability that wilful

misconduct on the part of the

Defendant had so done. The

Defendant had commenced an

adulterous relationship with the

person with whom he is presently

living in what could be described as a

flagrant

and

public

fashion

circulating amongst what had been

mutual friends of the parties.

An Order was made for £20 per

week maintenance to the Plaintiff

having regard (a) to the earning

capacity of the Defendant, (b) to the

wants of the Plaintiff including the

anticipated

necessity

rent

accommodation, (c) to the earning

capacity of the Plaintiff and (d) to the

interest to which the Plaintiff is

entitled in the Family Home.

- High Court per Finlay P.

2 I December 1979 — unreported.

PLANNING ACTS

Local Government (Planning &

Development) Act 1976 — Order

sought to prohibit the continuance of

unauthorised use of premises zoned

as residential for office purposes —

No guarantee of protection for

successor in title.

The Respondent and his wife

purchased a two storey over

basement terraced house on Rathgar

Road Dublin in 1972. The area was

zoned exclusively for residential

purposes.

Immediately

after

purchasing

the

premises

the

respondent commenced to practice in

the basement of the premises as a

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