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GAZETTE
DECEMBER1980
taken over any of the stock-in-
trade of the deceased, that there
was not a sufficient "clearly dis-
cernible connection" between the
premises of the Plaintiff and the
trade dispute which would justify
the picketing of the Plaintiff's
own premises. Accordingly, an
injunction was granted restrain-
ing the picketing of the Plain-
tiffs premises in Inchicore
pending the hearing of the action.
Alice Clcary v. Patrick Coffey and
Others,
High Court (per McWilliam
J.), 30 October 1979 - unreported.
LANDLORD AND TENANT
Limited description of property in
Lease — Surrounding circumstances
and correspondence used to ascertain
intention of parties at the time lease
was granted.
The Plaintiff was lessee of premises
under a lease dated 21 November
1977 for a term of 10 years from 1
January 1977.
The premises were described in the
lease as "the lock-up shop premises
at shop No. 1, Back Street, other-
wise Fair Green, Arklow, in the
County of Wicklow". The Plaintiff
claimed the lease included a yard
with a store and shed at the rear of
the shop. The Court looked at the
history of the premises and the
surrounding circumstances leading to
the execution of the lease.
The shop in question was Shop
No. 1 in a terrace of three shops all
owned by the Defendant landlord.
Behind the terrace there was a yard
and one toilet. It was intended that
the occupiers of each of the shops
would have the right to enter the yard
to obtain access to the rear doors of
their shop and presumably to use the
one toilet. Shop No. 1 had been let in
1968 to a predecessor in title of the
Plaintiff for a term of five years with
a clause for renewal.
That
predecessor in title had erected the
(disputed) store with the consent of
the Defendant. Ultimately in 1971
the Plaintiff took an assignment of
Shop No. 1 and had already or there-
after obtained the leasehold interests
in both the adjoining Shop No. 2 and
in the flat which extended over both
shops. The Plaintiff then covered in a
portion of the yard behind Shop No.
1 and made some alterations to the
store. This covered-in space was then
used for a refrigerator and a machine
for preparing potato chips for the fish
and chip business the Plaintiff car-
ried on in Shop No. 1. The Plaintiff
fell into arrears with rent in 1975 and
the Defendant in 1976 obtained a
judgment against the Plaintiff for the
then amount of the arrears. Sub-
sequently, an agreement was made
on 29 March 1977 between the
Plaintiff and the Defendant whereby
the Plaintiff agreed to pay the
amount of the judgment by
instalments and to vacate the
overhead flat in consideration of the
Defendant granting the Plaintiff a
new (fixed term) lease of Shop No. 1
for ten years from 1 January 1977.
A Tease pursuant to the agreement
of 29th March 1977 was ultimately
granted and was dated 21 November
1977 and the Plaintiff continued in
occupation under that lease and was
apparently also using the yard and
store at the rear. Later, the
Defendant became exasperated with
the way the Plaintiff was using the
yard and the way grease from his
cooking operations was choking the
drain. The Defendant, relying on the
wording of the lease, sought to
exclude the Plaintiff from the yard
and store and ultimately the
Defendant blocked the entrance and
knocked down the store.
Held
(per McWilliam J.) that it
was relevant that the shop had been
used and was, in accordance with the
lease, to continue to be used as a
restaurant and shop and that the
restaurant and shop had, to the
knowledge of the Defendant, been at
all times used for fish and chips and
"take-away" type of business with a
rear entrance to the shop from the
yard which had been used for the
delivery of goods to the shop; also,
there was no toilet iq the shop and so
the toilet in the yard had been used. It
appeared from the evidence, that at
the time of the agreement — March
1977 — and of the lease in November
1977 that no specific agreement had
been made to exclude from the lease
the toilet and the store and the use of
the yard. Therefore, it was clear that
what was intended to be demised,
and what was demised, by the
Defendant to the Plaintiff, was the
same as had been let in the earlier
agreements relating to Shop No. 1
i.e. it included the toilet and store and
use of the yard.
Magno Di Murro v. Elizabeth Childs
- High Court (pert McWilliam J.) 14
December 1979 — unreported.
PRACTICE AND PROCEDURE
Delay after specific performance
order not a bar to forfeiture — Effect
of Plaintiff
's
delay.
Mr. S. agreed to sell No. 3 Dame
Lane, Dublin for £60,000 to the first-
named Defendant in trust for the
second-named Defendant by a
Contract dated 15 February 1974. A
deposit of £6,000 was paid and the
closing date was fixed for 1 March
1975. The Defendants failed to
complete and proceedings for specific
performance were instituted. These
were settled and the terms of the
settlement
were
incorporated
in a Court Order dated
10
December 1975 which contained
a decree for specific performance
with a stay on the order until 10
December
1976. There were
provisions for the payment of interest
by monthly instalments and for the
payment by the second-named
Defendant of the costs of the action
and the sale. The Defendants made
some payments of interest but ceased
these payments in August 1976 and
their solicitors told the Plaintiffs'
solicitors that the second-named
Defendant was not in a financial
position to close the sale. The
Plaintiffs' solicitors re-entered the
motion and on the hearing of the
motion the Defendants' solicitors
indicated that they had no
instructions in the matter. At the
judge's suggestion a motion claiming
an order forfeiting the deposit and
rescinding the sale was issued on 7
February 1977, but before it could
be heard Mr. S. died, on 3 February
1977, and the mbtion was adjourned
generally.
In September 1977 the premises
were burned down and a Mr.
Stafford, who said he was the
purchaser, telephoned the Plaintiffs's
solicitors and stated that there was
nothing he could do about paying the
balance of the purchase money at
present. Inconclusive negotiations for