451 / 462
GAZETTE
JULY/AUGUST
1991
WHELAN -V- CORK CORPORATION
HIGH COURT 13 FEBRUARY 1990
Land law — Restrictive covenant —
Aaalgnmant of land — Rule in
Tulk -v-
Moxhay
— Whether asaignaa having
notice —Whether covenant enforceable
by tenant against assignee of landlord —
Interpretation of covenant — Whether
covenant extinguished by assignee's
purchase of fee simple — Constitution
—Whether extinguishment of covenant
in breach of property rights — Landlord
and Tenant (Ireland) Act [Deasy's Act] 1860,
s.13 — Conveyancing Act 1882, s.1 —
Landlord and Tenant (Ground Rents) (No. 2)
Act 1978, s.28 - Constitution, Article 40.3.
The plaintiffs were the leasehold owners of
property in respect of which a restrictive
covenant existed in their favour which
prohibited the construction on a certain
portion of the land of any structure in excess
of 12 feet in height. In 1984, the defendant
Corporation purchased an interest in
possession in the land in respect of which
the restrictive covenant existed. In 1985, the
defendant was informed by letter that the
plaintiffs were entitled to the benefit of the
restrictive covenant over the land. In 1989
the defendant Corporation purchased the
leasehold interest in the property and later
that year it also acquired the fee simple
estate in the property. The plaintiffs sought
injunctions to restrain the defendant from
completing certain works on the ground that
they were in breach of the restrictive
covenant. It was agreed by the parties that
the works would involve structures in excess
of 12 feet in height. The defendant Cor-
poration argued, however, that it was not
bound by the covenant on the grounds that:
(i) it was a purchaser for value without
notice within s.1 of the 1882 Act; (ii) the
covenant was not sufficiently wide to
capture the defendant; (iii) the covenant was
not a contract concerning the lands and thus
could not be enforced by a tenant against
an assignee of his landlord under s.13 of the
1860 Act (Deasy's Act); and (iv) the
covenant ceased to exist pursuant to s.28
of the 1978 Act once the defendant pur-
chased the fee simple estate. HELD by
Murphy J refusing the injunctions sought:
(1) the plaintiffs were entitled to enforce the
covenant in equity as persons entitled in
equity to the benefit of the bargain by which
it was created against any person bound in
equity by notice of it, either express or to
be imputed at the time of acquisition of title
Tulk -v- Moxhay
(1848) 2 Ph 774 and
Williams & Co Ltd -v- LSD Ltd
(High Court,
19 June 1970) applied; (2) the defendant
had notice of the covenant after it received
the letter in 1985 indicating the plaintiffs'
entitlement to rely on the covenant; but even
prior to 1985 the defendant would have had
notice imputed to them because the nature
of the covenant should have resulted in
inquiries being put in train to ascertain
whether there were third parties such as the
plaintiffs who might have been entitled to
enforce the covenant; (3) the interpretation
contended for the defendant that the word
'assign' in the covenant did not capture the
circumstances by which it obtained the
property was too narrow, and while it might
have been more helpful to express imper-
sonally the obligations imposed by the
restrictive covenant than to identify it with
the actions or inactions of particular persons,
the court should take a practical and
purposeful interpretation of the language
used.
Dicta
in
Ricketts -v- Enfield Church
Wardens
[1909] 1 Ch 544 approved; (4) s.13
of the 1860 Act (Deasy's Act) had no
application to the instant case since liabilty
in equity under the rule in
Tulk -v- Moxhay
was quite distinct from the position of
parties suing in the position of landlord and
tenant; (5) the defendant was entitled to rely
on the wide terms of s.28 of the 1978 Act,
which referred to the extinguishing of 'all
covenants' on the purchase of the fee
simple, in arguing that the covenant had
been extinguished in.the instant case; and
while this might have resulted in the
extinguishment of property rights, this did
not necessarily render unconstitutional s.28
of 1978 'Act, and in the absence of argu-
ments from the Attorney General the court
would not adjudicate on the constitutional
issua
East Donegal Co-Op Ltd-v- Attorney
General
[1970] IR 317 discussed.
D. -V- D. HIGH COURT 19 DECEMBER
1989
Family law — Maintenance agreement —
Provision f or variation upwarda —
App l i c a t i on to vary downwa r da —
Whether court may make such order —
Family Law (Maintenance of Spouses and
Children) Act 1976, s..5, 8.
The parties had entered into a separation
agreement, which included a clause pro-
viding for increases in the maintenance
payable by the husband in accordance with
inflation. The agreement was made a rule of
Court under s.8 of the 1976 Act. The
husband applied to Court for an order that
the maintenance payments be adjusted
downwards on the ground that his financial
circumstances had worsened considerably
since the agreement was entered into. HELD
by Barron J: the husband was entitled to a
variation downwards in the sum payable to
the wife, and althought there appeared to be
a lacuna in the 1976 Act in this respect, the
ability of the husband to apply for such
variation was consistent with the right to
apply for a maintenance agreement under
s.5 of the 1976 Act and there was therefore
mutuality of rights between the parties.
Dicta
in
H.D.
-v-
RD.
(Supreme Court, 8 May
1978) applied.
DUNLEA -V- NISSAN (IRL) LTD HIGH
COURT 24 MAY 1990
Injunction — Interlocutory — Stateable
caee — Balance of convenience —
Franchise agreement — Termination —
European Communities regulation —
Directive on Exclusive Dealing 85/123/EEC
- Treaty of Rome (1957), Article 86.
The plaintiff, a motor car dealer, had been
since 1980 the Nissan dealer for south
County Kildare, pursuant to agreement with
the defendant. In 1989, the plaintiff began
selling used cars imported from Japan,
iincluding Nissan vehicles. In October 1989
the plaintiff became aware that the
defendant objected to the second hand car
sales, and despite some discussion on the
matter the defendant terminated the
plaintiff's Nissan franchise by letter in
December 1989, to take effect in February
1990. Subsequent to the termination the
plaintiff excluded second hand Nissan
vehicles from the range of imported vehicles
which he sold and also carried on the second
hand business at a separate premises from
those relating to the Nissan dealership. The
plaintiff applied for an interlocutory
injunction pending the trial of his action
claiming that the defendant had wrongly
terminated the franchise. HELD by Barr J
granting the injunction: (1) without making
a final determination on the issue, the
plaintiff had established an arguable case
that the termination of the agreement was
in breach of the 1985 EEC Directive on
Exclusive Dealing or in breach of Article 86
of the Treaty of Rome; (2) having regard to
the respective positions of the parties,
damages would not be an adequate remedy
for the plaintiff if an interlocutory injunction
was refused; (3) the balance of convenience
lay in favour of granting the interlocutory
injunction, since if the plaintiff was ulti-
mately successful his loss if the injunction
was not granted would be unquantifiable
and signficant, whereas if the defendant was
ultimately successful the undertaking as to
damages by the plaintiff would be sufficient
to compensate for any loss suffered through
continuation of the franchise.
O ' CONNOR -V- FIR8T NAT I ONAL
BUILDING SOCIETY AND HENDERSON
AND OR8 (MARGET80N & GREENE)
HIGH COURT 3 JULY 1990
Negligence — Solicitor — Purchese of
lend — Independent inspection —
Whether solicitor under Invariable duty
to recommend Independent Inspection
of property —Whether
Prima
Fscleduty
srlees — Building society — Whether
dlssusdulng purcheser f r om sooklng
independent Inspection
The plaintiffs, husband and wife, purchased
a house, in connection with which the first
defendant advanced a loan and the second
defendant (a firm of solicitors) acted on
behalf of the plaintiffs. The house was in a
bad state of decorative repair. When the
plaintiffs were arranging the loan from the
first defendant, they were told that an
independent inspection could cost anything
between £100 and £700 but that the
Society would arrange a survey for a fee of
£29. The plaintiffs paid this latter sum for
the survey and signed a loan application
form which provided that the Society
accepted no responsibility for the condition
of the property. When the plaintiffs saw their
solicitor in the second defendant's firm, they
inquired about an independent inspection of
the property. The solicitor, who appeared to
be under the impression that the plaintiff
husband was in the building trade, recom-
mended that they carry out a test them-
selves on the floorboards and walls. The
Society's survey failed to reveal that there
was seriouos damage to the chimney flues
in the house as well as some ground floor
rot. The plaintiffs sued both defendants in
negligenca HELD by Lynch J finding against
the second defendants only: (1) the nature
of the reference by the building society to
an independent inspection did not amount
to a representation dissuading the plaintiffs
from obtaining such independent inspection,
nor were they misled as to the form of the
survey which the society arranged; and they
must also be fixed with notice of the clause
in the loan application form by which the
society accepted no responsibility for the
condition of the property.
Dicta
in
Ward-v-
McMaster[
1989) ILRM 400; [1988] IR 337
applied; (2) while there was no absolute rule
that a solicitor must always advise a
purchaser to have an independent inspection
by a suitably qualified person, a
prima facie
duty to so advise does arise which can only
be negatived by the particular circumstances
of a case; and in the instant case it was clear
that the plaintiffs would have invested the
necessary amount to provide for such an
independent inspection, which would have
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