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GAZETTE
JULY-AUGUST
1980
RECENT IRISH CASES
CONTRACT — SPECIFIC
PERFORMANCE — INTEREST
Plaintiff purchaser liable to
Defendant Builder for interest on
balance of purchase money at con-
tract rate from date defects in new
house remedied up to date when pur-
chaser put balance on joint deposit
receipt, and after that date builder
only entitled to the interest on the
deposit receipt.
The Plaintiff (purchaser) signed a
contract with the Defendant (builder)
on 6 September 1977 which provided
that the Defendant would complete a
house and sell it to the Plaintiff by 29
September 1977 but that the
Defendant would not be liable for
any delay. The contract also
provided that any dispute relating to
work in progress or completion
would be decided by the Defendant's
architect whose decision would be
final and binding; and that if the
Plaintiff did not pay for the house on
final completion the contract pro-
vided that an interest rate of 20%
would be charged from two weeks
after the date of (final) completion
when the balance of the purchase
price would be payable. On 27
October 1977 the Defendant told
told the Plaintiff that the house was
ready, but the Plaintiff did not accept
this and left with the Defendant a list
of defects which was confirmed by
letter of 27 November 1977 fur-
nished to the Defendant's solicitors.
The Defendant accepted that there
were defects at this stage but said
that they were not of a serious nature
and claimed that they had all been
remedied by early December 1977.
The Plaintiff attended the premises
with a qualified person (who ap-
peared to be a friend or relative of the
Plaintiff), in the middle of December
1977 and an inspection was carried
out but no report of this inspection
was furnished by the Plaintiff to the
Defendant though the inspection was
referred to in a letter from the Plain-
tiffs solicitor of 24th January 1978.
Between the date of that inspection
by the Plaintiff and the issue of an
architect's certificate by the
Defendant in May 1978 confirming
completion, correspondence passed
between the parties wherein the Plain-
tiff claimed that the house was
defective and that he required inspec-
tion of it and the Defendant claimed
that the house was completed and
that he required closing and interest
at 20% on the balance of the pur-
chase price payable from November
1977. The Plaintiff did not make an
appointment to inspect but when the
Defendant furnished the architect's
certificate in May 1978 the Plaintiff
agreed to complete and pay interest
from that date but the Defendant
insisted upon full payment of interest
from that date at 20% from
November 1977. On 25 June 1978
the Plaintiff put the balance of the pur-
chase money on joint deposit receipt
in the names of the Plaintiff and the
Defendant and he commenced pro-
ceedings for specific performance on 3
August 1978.
On the evidence before him the
Court (McWilliam J.) was satisfied
that the premises were not completed
in October or November 1977 but
accepted that the defects were not of
a serious nature and that they had
probably been remedied by the
middle of December 1977 when the
Plaintiff examined the house with his
qualified friend or relative. The judge
commented that it was significant
that this qualified friend did not
furnish a written report and did not
give evidence. It was accepted by the
Defendant that if interest was
payable by the Plaintiff then, for con-
venience, since no definite dates in
December 1977 had been estab-
lished, the premises would be held to
have been completed on 1 January
1978. The Defendant also accepted
that the Plaintiff was entitled to his
decree for Specific Performance and
the Court made no decision in that
respect.
Held
(per McWilliam J.):
1. That the Defendant (builder) was
entitled to interest at 20% from 1
January 1978 until 25 June
1978 when the Plaintiff placed
the balance of the purchase
money on joint deposit receipt
but that after the 25 June 1978
the Defendant was entitled only
to the interest earned on the joint
deposit receipt.
2. That the Plaintiff was not en-
titled to any damages for being
kept out of the house from 1
January 1978 until the date of
the judgment.
3. That the Defendant was respon-
sible for the damage to the house
caused by the hard winter of
early 1979 in so far as this was
due to his want of reasonable
care; but that the Court had been
given no evidence whatsoever as
to the position in that respect.
Derek Treacy v. Dwyer Nolan Dev-
elopments Limited
— High Court (per
McWilliam J.) - 31 October, 1979
— unreported.
CRIMINAL LAW — APPEAL
An application for a certificate of
leave to appeal to the Court of
Criminal Appeal on the grounds that
certain statements and certain parts
of statements ought not to have been
admitted by the trial judge —
Criminal Justice (Evidence) Act
1924, Section 1 (F).
The Appellants, W.T.M. and
B.O'S.,
had been convicted at a joint trial in
the Central Criminal Court with the
murder of one
J.H.
In the course of
their trial, certain statements made
by them had been admitted into
evidence. Counsel for the appellants
had objected to the admission of
these statements on several grounds
at the trial. At the hearing of the
application for a Certificate for leave
to appeal to the Court of Criminal
Appeal, their Counsel argued that the
statements ought not to have been
admitted. Their main ground for this
contention was that the appellants
had not voluntarily gone to the
station where they made their
statements, but, in fact, had been
arrested, and were in custody when
they made their written statements,
and that they ought to have been
brought before the District Court
prior to the time that they made their
statements. At the trial, there had
been conflict of evidence between the
Gardai and the accused.
Held:
(per Finlay P.)
(1) That the function of the Court of
Criminal Appeal on issues such
as this was set out by the C.C.A.
in
The People v. Madden
119771
I.R. 336 at p. 340 (per O'Hig-
gins C.J.)
" . . . it would seem to be the
function of this Court to con-
sider the conduct of the Trial
as disclosed in the sten-
ographer's report to determine
whether or not the trial was
satisfactory in the sense of