The Gazette 1976

236 / 274

GAZETTE J UNE/JULY 1976
18 brandies and 22 glasses of Harp
Lager on 3rd August, and that he
was consequently intoxicated. The
defendant's evidence is so heavily
burdened with improbability that it
must be rejected, and the plaintiff's
version must be upheld.
The defendant further claims that
the agreed price of £6,000 was so
much below the fair price for the
property that it was unfair and
unconscionable. The onus of proof
to establish this lies on the defen-
dant, who is a publican. The de-
fendant bought the premises in
Dublin Street, Monaghan, for his
son, then aged 18 years, for £7,000
in 1970, and made a few minor
alterations. A local auctioneer gave
evidence that the state of repair was
below average. The plaintiff said
that normally these premises were
not open save on Saturday evenings.
The furniture was old. The plaintiff
would have to pull the whole in-
side out, take off the back wall, and
put a new roof on. He expected to
spend about £10,000 on it. He was
basing his price on what he would
have to spend. The Court considers
that there is not such a disparity
between the price of £6,000 agreed
upon, and the price which the de-
fendant might reasonably have ex-
pected from any other buyer. The
defendant was anxious to get rid of
the premises, and to be paid in cash
in full, and there had been ample
negotiation. The defendant was in
no position, after his very short
period to show any evidence of
trading returns attractive to a pro-
spective purchaser.
The defendant claimed there had
been delay by the plaintiff; there
was no evidence to show that the
plaintiff intended to abandon his
claim, nor is there evidence of any
injury to the defendant. There is
implicit in a contract of sale of
licensed premises a term that, if the
vendor is the occupier and licensee,
he will not permit the licence to be
lapsed or forfeited, nor will he sur-
render it. But the plaintiff claims an
injunction, for which there appears
to be no basis, instead of a declara-
tion that the defendant is a trustee
for him of the premises and of the
licence. It is therefore proper in this
case that the plaintiff should be
awarded damages which in all the
circumstances are estimated at
£4,500, in order to enable him to
carry out this purchase. The plain-
tiff is also entitled to the costs of
the action.
White v. McCooey — Gannon J. —
unreported — 26th April, 1976.
VENDOR AND PURCHASER
Rescission of contract of sale of
licensed premises and return of de-
posit to purchaser granted in view
of misrepresentation.
The two plaintiffs claim rescission
of an agreement made on 15th
November, 1973, for sale by the de-
fendant to the plaintiff for £95,000
in respect of licensed property in
Roosky, Co. Leitrim. They also
claim £20,000 deposit by them to
the defendant as deposit for said
agreement, and £4,700 auction fees,
together with 13% interest on said
sums from 15th November, 1973 to
latest date. They also claim addi-
tional damages for misrepresenta-
tion, breach of warranty, fraud and
deceit. The plaintiffs allege that
prior to an auction in Dublin on
15th November, 1973, on the auc-
tion premises, the defendant vendor
expressly warranted to a solicitor of
plaintiff's firm that he had returned
a turn-over of between £60,000 and
£65,000 to the Revenue Commis-
sioners in respect of the property.
On the faith of the said warranty,
the plaintiffs signed the memoran-
dum, and paid the deposit and
auction fees. The plaintiffs have
since discovered that this warranty
was untrue, inasmuch as the turn-
over was much lower. The plaintiffs
accordingly repudiated the agree-
ment by letter of 8th March, 1974.
The defendant attempted to deny
that he had quoted any figure of
turn-over to the plaintiff, and at-
tempted to claim a counterclaim
that the deposit of £20,000 be for-
feited to the defendant; he also
attempted to claim the alternatives
of specific performance, re-sale, in-
terest on outstanding purchase
money, and damages for breach of
contract.
The two plaintiffs were anxious
to purchase a licensed premises, and
had ascertained that the going price
was one and a half times the turn-
over, and that consequently the turn-
over was an important factor in
determining the price. At a lunch
before the auction, the plaintiff
arranged for the solicitor to repre-
sent him at the auction. The de-
fendant stated verbally at the auc-
tion to the solicitor that, according
to the returns he had made to the
Revenue Commissioners, the turn-
over was between £60,000 and
£65,000. This statement induced
the solicitor on behalf of the plain-
tiff to bid high, and the premises
were finally knocked down for
£95,000. The plaintiff stated that
the defendant called to his house in
January, 1974, and had assured him
that he could prove that the amount
of the turn-over was genuine. The
plaintiff admitted that the cheque
for £24,750 was cancelled by
arrangement with the auctioneer.
The second plaintiff stated he had
visited the auction rooms some days
before the sale, and had a dis-
cussion with the auctioneer about
turn-over. Although no books were
produced, the amount was stated to
be about £50,000. At the auction,
when the solicitor asked whether
there were any records about turn-
over, he was told there were no
figures available. An accountant
practising in Co. Longford stated
lie dealt with defendant's income
tax affairs for the two years ending
30th September, 1973, and the total
turn-over for the two years was
£32,000; the accountant said that
he told the first plaintiff the turn-
over would be about £40,000. From
all the evidence given, it is quite
clear that the plaintiffs attached
great importance to the question of
turn-over. The Court accepts that
the solicitor bid for the property up
to £98,000 on the sole understand-
ing that the defendant had stated
the amount of the turn-over to be
from £60,000 to £65,000. This
statement was not only untrue, but
was made knowing it to be untrue,
and was thus a misrepresentation.
Accordingly the plaintiffs are en-
titled (1) to rescind the contract,
(2) to the return of the deposit and
the auction fees, and (3) to stated
interest. The irregularities in the
bidding sanctioned by the defendant
were an infringement of the Sale
of Land by Auction Act 1867.
Airlie and Keenan v. Fallon — Hamil-
ton J. — unreported — 27th January,
1976.
HABEAS CORPUS
Unruly prisoner subject to special
restrictions is not undergoing in-
human and degrading treatment.
Habeas Corpus refused.
Application to make absolute Con-
ditional Order of Habeas Corpus.
The applicant is detained in Mount-
joy, having been convicted on a
number of counts of breaking and
entering and robbery with violence,
was sentenced to two years on 28th
February, 1975, and, if of good con-
duct, could be entitled to be re-
leased in July, 1976. Various psy-
chiatric doctors have given evidence
to the effect that the applicant is
suffering from a socio-pathic per-
sonality trait disturbance. He is not
specifically insane, nor is he a psycho-
path. He had been brought up
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