308 / 322
GAZETTE
JULY/AUGUST
198
cases in respect of the practice of the
Court of Chancery.
The Court indicated that it had some
hesitation in accepting that principles
which evolved as to the manner in which a
statutory jurisdiction might be exercised
could survive the repeal of that Statute.
Assuming, though not accepting, that
such jurisdiction did exist it was
necessarily subject in its exercise to the
proper discretion of the Court. The Court
held that the granting of an Order of
Partition on the basis of the evidence
available would be wholly inappropriate.
Noting that the Plaintiff was in fact
seeking an Order for sale in lieu of
partition the Court stated that such an
order will not be made until the Court
sees good reason to the contrary. In the
view of the Court good reason at the
present time would properly have regard
to the rights of the parties under the
Family Home Protection Act, 1976. It
had been argued that the FHP Act did not
repeal the Partition Acts or any of them
and it was contended therefore that if an
Order for Partition was granted this
dispensed with the necessity for
procuring the consent of a spouse under
that Act.
The Court did not agree that this
argument was well founded and held that
the loss of the Statutory veto created by
the Family Home Protection Act
represented good reasons within the
meaning of Section 4 of the Partition Act,
1868 and accordingly refused the applica-
tion for an Order for sale in lieu of
partition.
O'D
-v-
O'D - High Court (perMurphy J.),
18 November, 1983 - unreported.
John Buckley
CONTRACT/CONVEYANCING
Contract for Sale of Land — delay in
completion — purchaser serves notice
under Clause 28 of General Conditions —
vendor fails to complete in accordance with
same — application to determine whether
contract validly rescinded.
A Contract for the sale of three parcels
of land was exempted dated 3 April, 1981.
The Contract was in the standard Law
Society form for Sale by Private Treaty.
The acreage of each parcel was given in
the Particulars and, if added together,
comprised 51 acres 3 roods. In the final
section of the Particulars however it was
stated "the total acreage being sold under
this Contract is believed to contain 54.2
acres statute measure or thereabouts".
The Contract contained a Special
Condition stating that no requisition or
objection could be raised as to the
accuracy of the area in sale.
Although the Contract was dated 3
April, 1981 and the Contract was sent to
the Vendor's Solicitor together with a
cheque for the deposit on 8 April, 1981, it
was not returned to the Purchaser until
after the stated closing date of 1 May,
1981. At that time the Vendor's Solicitors
disclosed that one parcel of the land was
still registered in the name of a person
who had died in 1929. The Vendors stated
that they would be attending to the recti-
fication of the title to this parcel in the
Land Registry. The Purchaser's reaction
was that this would take some time. The
Purchaser suggested that they proceed to
complete the purchase of the other two
parcels of land apportioning the purchase
price. This offer was not taken up at the
time by the Vendor's Solicitors.
By letter of 15 July, 1981, the
Purchaser's Solicitors complained that
the acreage was not 54.2 acres as stated in
the Particulars in the Contract. On 21
August, 1981, the Vendor's Solicitors
replied drawing attention to the Special
Condition in relation to area. Also, at
some time during that Summer the
Purchaser entered on the lands to save
hay which he cut and baled and put into
barns on the land.
In September, 1981, the Purchaser's
Solicitors wrote a letter invoking the
provisions of Clause 28 of the General
Conditions and calling on the Vendor to
complete the sale on or before 19
October, 1981. In the same letter the
Purchaser's Solicitors stated that the
Purchaser was insisting that he be
transferred 54.2 acres as stated in the
Contract.
When the Vendor failed to complete
due to the fact that he was not able to
show title to one parcel of the lands the
Purchaser's Solicitors wrote a further
letter on 20 October, 1981, requesting a
return of the deposit.
The instant proceedings were brought
under the Vendor and Purchaser Act
1874 claiming a declaration that the
Agreement for Sale had been validly
rescinded. The Court HELD
(a) The Purchaser was precluded from
relying in any way upon the small discre-
pancy in the area of the lands as the
Purchaser, by adding together the
acreage of the three parcels, would have
arrived at the correct acreage and the
Vendor could also rely on the Special
Conditions.
(b) The notice served on behalf of the
Purchaser under Clause 28 of the Agree-
ment for Sale was not a valid notice.
Under Clause 28 of the General Condi-
tions the party serving the notice must be
then "able, ready and willing to complete
the sale". The Purchaser was not so
"able, ready and willing to complete the
sale" in accordance with his obligations
under the Contract as in the letter purpor-
ting to invoke the provisions of Clause 28
he stated he would insist upon being
transferred the full of 54.2 acres.
(c) The notice under Clause 28 was
also invalid because it was not expressed
in "a clear and unequivocal manner" In
the letter serving the notice the
Purchaser's Solicitor had purported to
reserve to the Purchaser the right to
repudiate the Contract in full since there
had been unreasonable delay on the part
of the Vendor.
(d) The Court also rejected the
Defendant's claim that, once the
Purchaser had served a notice under
Clause 28, he could only succeed in his
claim that the Contract was rescinded if
the notice under Clause 28 had been
validly served. Reference was made to
Wood and Others
-v-
Mackenzie Hill
Limited
[1975] 2 All ER 170. Nevertheless
the Court held that the rather casual
approach adopted by both parties to the
time for closing did not therefore amount
to such an unreasonable delay on the part
of the Vendor to justify the Purchaser
rescinding on those grounds. Also, that
the Purchaser's offer to complete the
purchase of two out of the three parcels of
land had never been withdrawn and
therefore was open to acceptance by the
Vendor after service of the purported
notice under Clause 28 of the Contract.
Martin A. Commane
-v-
Johanna Walsh -
High Court (per O'Hanlon J.), 2 May,
1983 - unreported.
Colin Keane
LICENSING
Bona fide sale of licensed premises —
where applicant for transfer of licence is a
limited liability company, there is no
obligation to record on the licence a
conviction recorded against persons who
are directors and shareholders of the
company when acting as owners and
managers of difTerent licensed business.
At the annual licensing District Court
in Dublin in September 1982, the
President stated a case to the High Court
in relation to an application by Hesketh
Investments Limited, a limited liability
company, for a Certificate of Transfer of
the Publican's On License attaching to
the Ivy Leaf Bar, Old County Road,
Crumlin. An interim transfer of the
licence had already been granted to the
company on 10 March 1982.
Hesketh Investments Limited was
incorporated in November, 1980 and its
only shareholders and directors were
Paul Ryan and Terence Dunleavy. The
company's objects were altered by special
resolution in December, 1981, to enable it
to carry on the business of licensed vintner
and publican. The company, in fact, had
never traded. Messrs. Ryan and
Dunleavy had previously carried on the
business of publicans at the Countess Bar
in Townsend Street, Dublin and had been
joint holders of the intoxicating liquor on
licence attaching to that business. In July
1981, they were convicted and fined
£20.00 for permitting persons to be on the
premises during prohibited hours
contrary to Section 2 of the Intoxicating
Liquor Act, 1927. Again in November,
1981, they were convicted and fined
£40.00 for permitting persons to be on the
premises during prohibited hours and
they were convicted and fined £40.00 for
permitting consumption of intoxicating
liquor on the same occasion, this
VI