The Gazette 1975

Nullity decree granted on ground of duress

The wife sues for nullity of a marriage which took

place in August, 1970. Both parties are Catholics,

and there are no children. The ground of the petition

is that the wife was put in such fear of the husband

that she was compelled to marry him. In the first

instance marriage is a solemn contract which is

deemed to be valid. In this case the wife has already

obtained a decree of nullity from the ecclesiastical

authorities. When duress is pleaded, it must be a

question of fact.

The wife is 30 years old, and the husband, 37 years

old; they first met nearly 8 years ago in November,

1965. They were both from Co. Clare, and they were

both national school teachers working in Dundalk,

but there appears to have been little affection between

them. From 1965 until the marriage in 1970, the

parties associated with each other. The husband,

before the marriage, used the wife's car continuously,

and borrowed more than £1,000 from her to pay his

gambling debts; he also drank heavily. The judge is

satisfied, despite his denial, that he does owe the

wife £1,000. There is no doubt that the relationship

lacked any real feelings of affection. -

Two days before the marriage in 1970, the wife told

her mother and sister that, although she did not wish

to go through with the ceremony, the husband was

forcing her to get married in Dublin. The following

day, the husband and wife travelled together from

Ennis to Dublin. The wedding was suddenly changed

from 11.00 a.m. to 7.00 a.m. without notice to the

wife, so that none of the wife's relatives could attend.

From t he evidence it appears that he husband was

arrogant and domineering, and that he cut the wife

off from her friends; he is very forceful and disinclined

to take "No" for an answer. This fact and the exercise

of his influence largely contributed to the marriage

taking place, and this amounted to duress. Any marital

relations subsequent to the marriage also amounted

to duress. A decree for nullity is accordingly granted.

[B. v. D.—Murnaghan J.—unreported—20th June,

1973.]

Liquidator, who makes a loss unlawfully, must repay

the sum into the Liquidation Account

Murphy Bros. (Cork) Ltd. (hereinafter called "The

Company") was incorporated in October, 1940. The

issued share capital (15,000 shares of £1 each) was

£15,000, of which Patrick Murphy owned 6,000 shares,

William Murphy, 6,000 shares and Jeremiah Murphy,

3,000 shares. By special resolution of March, 1958,

confirmed in April, 1958, it was resolved that the

company be wound up voluntarily. As this resolution

was passed before 1963, this liquidation is governed

by the Companies Act, 1908. The defendant was

appointed liquidator of the company. Between 1958

and 1966 the liquidator advanced sums totalling

£100,000 at different times to Patrick Murphy. The

powers of a liquidator are strictly defined in S. 151

of the 1908 Act, and do not include a power to make

loans. Furthermore the sums were advanced in part

to purchase the shares of Mr. William Murphy, which

would have been a criminal offence under the Act of

1959.

In September, 1969, Mr. Patrick Murphy, by deed,

assigned to the plaintiff Bank all the monies which

were or would be payable to him in any capacity

whatsoever. It was arranged that the receipt of the

manager of the Cork office would be an adequate

discharge. When the defendant was informed of this,

he asked to be discharged from his office as liquidator,

but no steps were taken. In May, 1970, the plaintiff

Bank asked for a statement as to the liquidation, and

then discovered that a loan of £100,000 had been made

to Mr. Patrick Murphy. The assets of the company,

including the loan, were estimated at £210,000, and

the liabilities are about £70,000, leaving a surplus of

about £140,000. The liquidator, by collecting the

£100,000 improperly lent, could make a substantial

interim distribution to the shareholders.

In February, 1972, the Bank's solicitor pointed out

that the Bank as assignees of Patrick Murphy's interest

were entitled to the £100,000, and requested the

defendant to demand immediate repayment of

£100,000 from Mr. Patrick Murphy. The defendant

replied six weeks later that it was for the Bank to take

whatever steps they deemed necessary. The plaintiff

Bank, being dissatisfied, issued a summons in June,

1973, by which they claimed a declaration that the

defendant had acted in breach of duty in paying

£100,000 to Mr. Patrick Murphy; they requested that

this sum be paid back into the liquidation account,

and that the defendant as liquidator pay all monies

due by Mr. Patrick Murphy to the plaintiffs. The

reason for not paying this sum would appear to be that

in a liquidation, the sum payable to the Bank under

the assignment would be substantially reduced.

There is little doubt but that the plaintiffs are

entitled to be paid all sums of money in the liquidation

in respect of the shares owned by Mr. Patrick Murphy;

accordingly the plaintiffs are entitled to require the

defendant to recover the loan of £100,000. Accordingly

the order requiring the defendant to recall the loan of

£100,000 will be made, which is to be paid into the

liquidation account.

[Provincial Bank of Ireland Ltd. v. O'Connor—

Kenny J.—unreported—23rd July, 1974.]

£49,580 damages awarded in Co. Cork hotel action

In a reserved judgment delivered in the High Court,

Dublin, Mr. Justice Hamilton awarded £49,590

damages and costs to John J. Lynch, of The

Green, Midleton, Co. Cork, in his action arising out

of the partial collapse of his hotel, ,the Tara Hotel,

Midleton, 19 months after it had been opened.

Mr. Lynch had brought his action claiming £150,000

damages, against the architect, the builders, and the

firm which supplied the beams for the building.

The defendants were: Charles Beale, an architect, of

Cork; Patrick J. Murphy Ltd., building contractor, of

Carrigtwohill, Co. Cork (a firm which has since gone

into voluntary liquidation), and O'Reagan Precast Ltd.,

Cork.