The Gazette 1976

GAZETTE

UNE

1976

In this contract however, seemingly

time was not expressed to be of the

essence ol the contract; in fact there

was a clause that if the purchase

was not completed before closing

day, 22nd April, the purchaser was

to pay to the vendor interest of 15%

per annum on the unpaid balance of

the purchase money until the date

of actual completion. This is incon-

sistent with the notion that time

should be of the essence of the

contract.

2. Was the purchaser, between

22nd April and 26th July, in such

default of his obligations under the

contract as to entitle the vendor in

law to fix a reasonable time for com-

pletion? It was within the clear

knowledge of the purchaser, when he

entered the contract, that it involved

the taking over by him as a going

concern of a licensed business. The

title to the property did not present

much difficulty, and the solicitor for

the purchasers, having acted pre-

viously, was in full possession of

knowledge about the title. The pur-

chaser was deliberately in conscious

default of his obligations, for he

made no early attempt to obtain a

bridging loan. The vendor was there-

fore entitled to call upon him to

complete.

3. It was contended that the

letter of 26th July, was invalid in

fixing a time for completion, by not

indicating precisely what steps were

to be taken by the purchaser. This

contention cannot be sustained, as

it was well known to the solicitors

concerned what was to be done for

completion.

4. It was contended that the

letter of 26th July, was invalid to

require completion, because the two

weeks allowed was not a reasonable

time. Mainly in view of the time that

had elapsed since the original date

of completion, 22nd April, this letter

was in the particular circumstances

reasonable.

The decision of Circuit Judge

Neylon will be affirmed, and tla.

appeal dismissed. Specific perfor-

mance of the contract by the pur-

chasers will be refused.

O'Brien v. Seaview Enterprises Ltd

— Finlay P. — unreported — 31A

May, 1976.

LICENSING

The character of suitability of an

applicant should not be taken into

account in considering the granting

interim

licence, but the character

of the company concerned should be

considered.

By an agreement of January, 1975,

Mr. Woolton agreed to purchase a

public house known as the Chariot

Inn, Ranelagh, Dublin with licence

attached. Mr. and Mrs. Woolton

registered in May, 1975 as the direc-

tors of Chariot Inns Ltd. The Com-

pany passed a resolution appointing

Mr. Woolton to apply for an

interim

transfer of the licence. The

application came before the District

Court on 28th May, 1975. The de-

fendant Superintendent objected on

the ground that Mr. Woolton had

sustained several convictions for

breaches of the licensing laws, at a

time when Mr. Woolton had no

interest in Chariot Inns Ltd. The

application was withdrawn, and sub-

sequently the Company appointed a

first plaintiff, Mr. Henessy to make

the application. On 4th June, 1975,

District Justice Donnelly heard the

application, and the Guards indic-

ated that they had no objection to

Mr. Hennessy. The Justice, having

inspected the District Court books

learned that 7 convictions had been

recorded against Mr. Woolton in

respect of the Revolution Club in

Rutland Place. The District Justice

then refused the

ad interim

transfer

on the ground that the Company

had not got a suitable character.

Having considered in detail the

law on the subject, and in particular

Henchy J.'s decision, as a High Court

Judge, in The State (Doyle) v.

District Justices Carr and Delap —

(1970) I.R. 87 — Finlay P. held that

the applicant is entitled notwith-

standing cause shown by the Super-

intendent, to an absolute order of

Certiorari quashing the District

Justice's order, and to an order of

Mandamus directing the District

Justice to make an order to carry

on the trade in the licensed premises

until the next Annual Licensing

Session.

It is contended that Finlay P.

wrongly held that the District Justice

had power or discretion to refuse the

interim transfer of the licence to the

nominee of Chariot Inns Ltd., when

it had been established that a direc-

tor and part owner of that company

was a disqualified person. But Finlay

P. was correct in holding that the

character or personal suitability of

the applicant is not a factor to be

taken into account in deciding

whether an

ad interim

transfer

should be granted.

Per Henchy J. I am not persuaded

that in a licensing case, where char-

acter or personal suitability is

íd

issue, and the applicant is the nom-

inee of an incorporated company,

the inquiry is to be limited to the

character or personal suitability of

the nominee or of the incorporated

company.

Per Griffin J.: Two questions, not

decided in the High Court, were

raised on appeal, i.e. whether a com-

pany can hold a licence and whether

the character or suitability of a

director or shareholder of a company

can be considered when the Certifi-

cate of Transfer of the Licence is

applied for at the Annual Licensing

District Court. This Court sitting is

a Court of appellate jurisdiction,

should not normally decide or enter-

tain questions not decided or con-

sidered by the High Court. Opinions

on such questions would in any event

be merely

obiter dicta,

and should be

reserved until the questions arise in

an appeal, and are fully argued

therein.

Per Kenny J. — There is a widely

held myth that a company incor-

porated under the Companies Acts

cannot be granted a licence to sell

intoxicating drink, and that when it

is so licensed, the licensee must be

granted to the nominee. The case of

D. (Cottingham) v. Cork Co.

Justices (1906) 2 I.R 415, duly held

that a company could be granted a

licence. The illusion that a company

cannot be licensed springs from the

belief that a company cannot have

a character, and hence is not a per-

son. A modern company is a person

in the sense that it can sue and be

sued; it can be prosecuted in the

District Court and can be indicted;

injunctions can be granted against

it, and its property may be sequest-

rated. Good or bad character is a

matter of local or public reputation,

and the widest discretion is given to

Justices in respect of their Certificate.

A Licensing House is conducted in

a disorderly way if convictions are

had for breaches of the Licensing

Acts, or if improper characters are

allowed to resort there for improper

purposes. In such a case a Company

would, through their manager, whom

they put in charge, have an evil rep-

utation and a bad character. The

conduct of the authorised agents of

a company is

its

character.

In an application for in Interim

Transfer under the Public House

(Ireland) Act 1855, the District

Justice cannot of course transfer the

licence to an unqualified person.

He must however grant the transfer,

if the evidence establishes :- (1) That

either (a) the licensee has died, oi

(b) that he has removed himself

from the premises, or (c) that there

has been a sale or assignment of his

interest in the premises; (2) That

notice of this application has been

given to the Gardai and (3) That

the applicant, in this case the com'