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GAZETTE
MAY 1984
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
CONTRACT
Breach of Contract — derogation from
grant — specific performance — assess-
ment of damages — interest.
The Plaintiff agreed to purchase a five
acre site from the Defendant with Outline
Planning Permission for five houses in
May 1973. The site formed part of the
Defendant's land. Access to the site was
over a private laneway through the lands
of a neighbouring convent and then
through the Defendant's lands, past the
site in question onto the Defendant's
residence. The site was bounded on one
side by the River Boyne. The Defendant
led the Plaintiff to believe that the
laneway would be taken in charge by the
County Council.
The Plaintiff obtained full planning
permission in July 1973, Condition No. 1
specifying "that the water supply be
taken from the convent side and not
across the Boyne". The Defendant
refused to complete the sale. The Plaintiff
sought an Order for specific perfor-
mance. A compromise was reached in
November 1975 establishing the May
1973 Agreement with variations. Again
the Defendant refused to complete the
sale. In January 1977 the Defendant
placed gates across the laneway to
prevent uninterrupted access to the site
and prevent development and erected a
notice to the effect that the gates were to
be kept closed; later the Defendant told
the Plaintiff that he would not allow a
water main to the site over his land. In
further proceedings the Defendant was
again ordered to complete the sale and
the Plaintiff also obtained on Order
directing the gates to be kept open and
declaring that the Plaintiff be entitled to
have water brought to the site. At the
same time as an unsuccessful appeal
against this decision by the Defendant to
the Supreme Court, in February 1979, the
County Council indicated that they could
not take in charge a laneway with
obstructions. The Defendant then erected
a concrete wall across the laneway. In
March 1979, the Plaintiffs Solicitors
threatened further proceedings unless all
obstructions were removed from the
laneway. Proceedings were not issued
until December 1979, the Plaintiff
claiming
inter alia
(1) injunctions to
restrain the Defendant from obstructing
the laneway and derogating from his
grant, (2) damages and (3) interest. The
Defendant raised two basic defences (1)
lawful behaviour and the fact that the
Plaintiff did have limited access and (2)
that the restriction being sought should
have been reserved by the Plaintiff in the
Contract. These defences failed.
The doctrine of derogation of grant
imposes implied obligations on parties to
a Contract. It can impose on a Grantor,
where he has sold part of his land,
restrictions on the user of the land
retained by him but the doctrine is limited
to the presumed intention of the parties
and cannot cover situations not
anticipated.
It was held following the test laid down
in
Browne
-v-
Flower
[1911] ICh. 219
which was subsequently approved by the
English Court of Appeal that the
Defendant clearly derogated from his
grant and was in breach of implied
obligations imposed on him by the
Contract for Sale in that
1. the site granted by the Defendant to
the Plaintiff had been rendered
materially less fit for the particular
purpose for which it was acquired.
The site had been acquired for the
commercial development of five
houses. If the Council would not
take the laneway in charge the site
may still be capable of development,
but not along the commercial lines
originally intended.
2. By reason of the knowledge imputed
to the Defendant he should have
anticipated the result of his conduct.
The Defendant knew the site was
acquired for development and he
knew the importance of having the
laneway taken in charge.
As damages the Plaintiff claimed the
profits which he would have earned if he
had been able to develop the site without
delay.
HELD: by reason of the Plaintiff now
being in the same position as he would
have been but for the actions of the
Defendant damages would be assessed
taking into account the loss to the
Plaintiff of the cost of financing (1) the
purchase of the site for the period he was
unable to use same and (2) the limited
development of the site.
As to interest it was held that there
had been unnecessary delay between
March 1979 and December 1979 in
issuing proceedings and though the
Defence had been delivered in July 1980
the reply was not delivered until October
1980 and the matter was not set down
until July 1981. This was calculated as
being a delay of at least one year and the
allowance of interest was restricted
accordingly.
Anthony Cornell
-v-
Thomas Joseph
O'Malley - High Court (per Barron J.) 28
July, 1983 - unreported.
John P. O'Malley
CONVEYANCING
Partition Acts — jurisdiction of the court
to order partition — effect of the Family
Home Protection Act 1976.
The marriage between the Plaintiff and
the Defendant had run into difficulties
and the Plaintiff instituted proceedings in
the Circuit Court claiming a sale of the
family home in lieu of partition pursuant
to the Partition Acts 1868-1876. The
President of the Circuit Court did not
order a sale nor dispense with the
Defendants consent in the event of a sale
taking place. Instead he made an Order of
Partition and adjourned the balance of
the proceedings with liberty to re-enter.
The Plaintiff appealed to the High
Court and it was argued on his behalf that
as a joint tenant he was entitled as a right
to a decree for partition or that in any
event it was a suit where in the words of
Section 4 of the Partition Act 1868 — "A
decree for Partition might have been
made". That being so, then as the
Plaintiff was entitled to an interest in the
property to the extent of one moiety he
was entitled as of right to the sale of the
property unless the Court saw good
reason to the contrary.
The Court noted that joint tenants and
tenants in common did not have the right
at Common Law to compel a partition
and that the right of the joint tenant to
compel partition was conferred by a 1542
Statute entitled "An Act for Joint
Tenants". Prior to the passing of the 1868
Partition Act the Courts did not have
jurisdiction to direct a sale of property
held in tenancy in Common and the only
remedy was one of partition.
The Court further noted that there was
authority for the proposition that the
granting of a decree of partition was not
an absolute right of the parties nor a mere
formality of the Courts but that the
making of the Order required the Court
to be satisfied by evidence that it was a
proper case to make the particular order
sought.
The Court held that as no evidence was
produced before the Court — and no
enquiry sought or directed — it would be
inappropriate to make an absolute order
for partition and on that ground alone it
would set aside the Order of the President
of the Circuit Court.
The Court, however, noted that the
matter was more complex. The Plaintiff
had relied on the 1542 Act which in fact
was repealed by the Statute Law Revision
(Pre-Union Irish Statutes) Act, 1962.
Counsel for the Plaintiff had argued that
the jurisdiction to decree partition — as
opposed to a sale in lieu of partition —
was now exerciseable in accordance with
the principles established in the decided
v