The Gazette 1976

GAZETTE

UNE

1976

rejected.

The next question is whether the

claims of the debenture holders in

relation to the lands on the three

Folios rank before the rights of the

four Judgment Mortgages. Section

71(4) of the Registration of Title

Act 1964 stating that registration of

the relevant affidavit will operate to

charge the interest of the judgment

debtor subject to certain conditions

is quoted in full; this had not been

contained in the 1891 Act. The two

debentures created a specific charge

on Folio 9792 and a floating charge

over all the other assets of Tracta-

sales. The effect of the appointment

of a receiver under a Debenture is

that there is an equitable assign-

ment to the holder of all the pro-

perty subject to the floating charge.

The equitable assignment effected

by the appointment of a receiver

was an unregistered right, subject to

which Tractasales held the lands on

which the debentures were not re-

gistered at the time of the registra-

tion of the affidavits creating the

four Judgment Mortgages. A Judg-

ment Mortgagee is not a purchaser

for valuable consideration. Conse-

quently the question posed must be

answered in the affirmative. When

the relevant documents are produced

to the Registrar of Titles, it will be

his duty to annul the entries of the

four Judgment Mortgages, without

proof of the payment of any sum in

respect of any of them.

In view of the fact that the exis-

tence of the third Folio was only

discovered by the defendant on 23rd

January 1975, the 18% interest pro-

vided will only become payable from

that date.

Per Henchy J.: The plaintiff was

not bound, in order to make good

title, to discharge the moneys due on

foot of the post-contract Judgment

Mortgages. These mortgages took

effect subject t o the defendant's

equitable estate or interest in the

land. They could affect only such

beneficial estate or interest as the

registered owner then had. That

estate or interest could not survive

the completion of the sale, and the

registration of the defendant as full

owner. The defendant could then

have them cancelled on the Folios.

The appeal will accordingly be

allowed, and there will be an order

for specific performance of the Con-

tract.

Tempany v. Hynes — Supreme Court

O'Higgins, C.J., Henchy J. and Kenny

J.) — Separate judgments by Henchy J.

and Kenny J. — unreported — 1st June.

1976.

CONTEMPT OF COURT

Writer of article fined £300, and

editor of Sunday World fined £600

for falsely imputing to the Court

base motives, and for publishing

prejudiced particulars of a case

heard in camera.

On 3th June, 1976, the Sunday

World published an article entitled

"Tug-of-love children in tennis-

style battle". As a result of this

article, a motion was introduced to

attach the writer, McCann, and the

editor, Kennedy, for contempt.

The article referred to a Guard-

ianship of Infants case, heard

camera.

Kenny J. had made a

second decision relating to this mat-

ter

in camera,

and there was an

appeal pending against this decision

in the Supreme Court.

The article purported to give

details of the sorry story of a wrecked

marriage, with highly offensive re-

ferences to the father. It published

a photograph and the names of the

two boys and the mother. It was

clearly based on the mother's ac-

count of what had happened and

what the issues were. The article

attacked the handling of such cases

by the Court by falsely stating that,

instead of the welfare of the child-

ren being paramount, money and the

lifestyle it could buy was regarded

by the Courts as by far the most

important consideration. There was

an innuendo that justice could not

be obtained in Irish Courts. Both

McCann and Kennedy have ad-

mitted that they were guilty of the

gross contempt alleged against them,

and have filed affidavits expressing

their full apology.

It is important to note that free

speech and the free expression of

opinion must not be used to under-

mine public order or morality or the

authority of the State. As Lord Rus-

sell said in

R. v. Gray

(1900) 2

Q.,B. 36—"any act done or writing

published calculated to bring a

Court or a Judge into contempt, or

to lower his authority is contempt of

Court. Furthermore any act done,

or writing published, calculated to

obstruct or interfere with the due

course of justice or the lawful pro-

cess of the Courts is a contempt of

Court".

The offence committed by the

applicants here is one of deliberately

scandalising the Court. The offence

of scandalising is committed when,

as here, a false publication is made

which intentionally or recklessly im-

putes base motives or improper

motives or conduct to the judges in

question. Apart from the aspersions

cast on the Court, the offenders

have then to expose the private

sorrows of this family to public gaze

and comment, and to prejudice un-

fairly the future happiness of these

children. If the fullest apologies had

not been tendered, a substantial sen-

tence of imprisonment would have

been imposed upon them. The

writer, McCann, is fined £300, and

the editor, Kennedy, is fined £600,

both payments to be made within

2 days or imprisonment in default.

These applicants must pay in full

the costs of this motion for attach-

ment.

Re Motion to Attach McCann and

Kennedy for contempt of Court —

Supreme Court — (O'Higgim, C.J.,

and Griffin, J.) per the Chief Justice —

unreported — 7th July, 1976.

VENDOR AND PURCHASER

A stipulation in a written contract

of sale that time is of the essence

of the contract will be strictly

applied, and, in the event of non-

completion, due to vendor's default,

the purchasers are entitled to rescind

the contract and to a return of their

deposit.

Plaintiffs seek specific performance

of a contract for sale of 5th Novem-

ber, 1973 relating to premises at

Fleming Place in Dublin against the

defendant Company, and the defen-

dant firm of solicitors, hereinafter

called X. X signed the contract in

trust on behalf of the purchasers.

Throughout X acted for the defen-

dant company. The property sold

included 3 separate plots—(1) 18,

Fleming Place, (2) 17c Fleming

Place, and (3) Portion of the

the rere of 9 and 11 Upper Baggot

Street. The price was £134,840 and

a deposit of £23,000 was paid on

signing the contract. On the same

date, the purchasers entered into two

contracts with two subsidiaries of

the plaintiffs, namely (1) Manches-

ter Chemical Co. Ltd., and (2) Man-

chester Chemical Co. (Ireland) Ltd.

It was provided that the three con-

tracts should be completed at the

same time. The closing date was the

30th October, 1974, and there was

a special condition of sale stipulat-

ing that time was to be of the

essence of the contract, and, in the

event of non-completion, the vendor

would be entitled to rescind the

contract without notice, and that

then the purchaser's deposit would

be forfeited. Premises No. (3), being

the rere of 9 and 11 Upper Baggot

Street, consisted of coach-houses,

and about two thirds of the unfenced

ground. The vendors never used this

premises, but a Mr. McLaughlin,