The Gazette 1983

GAZETTE

JULY/AUGUST

1983

Jurisdiction is "to proceed and act and

give relief on principals and rules which in

the opinion of the said Court shall be as

nearly as maybe conformable to the

principals and rules which the Ecclesias-

tical Courts of Ireland have heretofore

acted on and given relief'. The court was

influenced by the fact that the

Ecclesiastical Tribunal had in the cir-

cumstances of this case granted a Church

annulment which was an indication that

canon lawmay embrace not only violence

and threats of violence but also certain

moral pressures of the type evident in this

case.

Held that a decree ofnullity be granted

on the ground of duress, as the will of both

the Petitioner and the Respondent was

overborne by the compulsion of their

respective parents to whom they had been

subject in the parent child relationship and

which drove them to marriage, neither

desired nor gave their consent to.„The

duress exercised was of a nature that they

were constitutionally unable to withstand

nor extract themselves.

M.K. (otherwise M. McC) v. F. McC,

[1982J ILRM 277.

Mary Griffin

CONTRACT —

Agreement to build silent as to a

term, related to services, implied term

should be included in the Agreement.

Council found to be in breach of the

implied term and must compensate for

damage sustained by the Plaintiff.

The Plaintiff a Building Contracting

company claimed damages for alleged

breach of an Implied term of a building

agreement dated 25 July 1974 (the

Principal Agreement) wherein it was

agreed that the Contractors execute and

do all works required in accordance with

the Contract and to the satisfaction of the

council's engineer for the completion of

twenty houses on the Council's site at

Town Parks, Skerries County Dublin.

This site was adjacent to a site owned by

the Plaintiffs on which they also intended

to build forty houses.

A dispute then arose in that necessary

connections for certain services which

were essential for the carrying out of the

works according to the above agreement,

were not provided for or available on the

council's site nor did the agreement

specify the responsibility of either party.

In order to resolve the problem and the

dispute which had arisen between the

parties it was agreed that the Contractors

should secure an agreement, with the

adjacent Developer. Lincoln Develop-

ments Limited whereby this Company

granted the Contractors the saidrights of

connections and services, subject to the

Contractors paying £7,500 to the

Company for,the said rights.

A Supplemental agreement dated 25

May 1976 between the Plaintiffs and the

Council stipulated that the said con-

nections and services were to be provided

from the lands belonging to Lincoln

Development Limited to the Council's

site, and this Supplemental agreement

was to be read in conjunction with the

Principal Agreement and it was agreed in

this Supplemental Agreement that the

council would reimburse the Contractors

the £7,500 paid to Lincoln Developments

Limited and did so.

This dispute resulted in 19 weeks

delay, and the Contractors claimed for

loss and damage which they sustained on

account of this delay on the basis that an

implied term should be read into the

Principal Agreement that there was an

obligation on the part of the Council its

servants, and agents to provide and supply

the said connections and services on the

Council's said site to enable the

Contractors to complete their obligations,

and in failing to do so the Council should

be held liable for loss and damage

sustained.

The Council argued against this:

(a) That the obligations ofproviding such

connections and services could not be

so implied.

(b) That the Plaintiffs were estopped

from claiming damages for delay on

foot of the Supplemental Agreement.

(c) That the delay was due to a difficulty

that arose in regard to the invert levels

at the boundary between the

Council's site and that of Lincoln

Development Limited.

(d) That the Contractors did not need to

negotiate on behalf of the Council

with Lincoln Development Limited,

but for themselves as they were

building forty houses next to the

Council's site.

(e) That when including all precon-

tractual documents and drawings

subsequent to the Principal Agree-

ment the situation shows that the

Contractors were responsible for the

connections and services.

The Court held that neither party con-

sidered or proposed that the Contract

should or could be frustrated. The Court

can imply a term which will implement the

presumed intention, to do what the parties

would have agreed but for their

inadvertent omission.

This power is vested in the Court since

the case of the

Moorcock

[1889] 14 P.D

64. The law looks at what is presumed the

obvious intention ofthe parties, and draws

implications into the Contract with the

object of giving efficacy to the transaction.

The Court held in the instant case that the

course of the conduct of the parties and

the corrspondence indicated that a term or

condition could be read into or implied in

the Principal Agreement, which if it had

been originally included would have

resolved the dispute in issue and further

that the relationship between the parties

was that of employer and contractor and

that the work was carried out on the

employer's site, and if the Contract failed

to provide the necessary term, that the

Council would pay the Contractors the

cost thereof as part of the Contract price.

The court also accepted the statement that

in the ordinary way it's for the

owners/developers of a building site to

provide or obtain the necessary and

essential services for the development.

The Council therefore was in breach of

an implied term of the Principal

Agreement, and were held liable to

compensate the Contractors for damages

suffered by them.

Keegan and Roberts Limited

Comhairle Chontae Atha Cliath.

High

Court (per Ellis J.) — 7 July 1981 —

unreported.

John Gore-Grimes

PLANNING -

Compensation for refusal of Planning

Permission — Undertaking for alter-

native development under Section 57

(3) of Planning Act, 1963 — Validity of

undertaking — Whether claim for com-

pensation is precluded by Undertaking.

The Claimant, applied for outline

Planning Permission for residential

development on 65 acres of his land at

Portmarnock. The Application was

refused by the Respondents and by An

Bord Pleanala, on appeal. The Claimant

then applied for £2.4m. compensation for

such refiisal under Section 55 ofthe Local

Government (Planning and Development)

Act, 1963 (The Act). The claim was

referred to the official Arbitrator. Before

the hearing before the Arbitrator

commenced, the Respondents furnished

to the claimant a document purporting to

be an Undertaking to grant Permission for

a development to which Section 57 of the

Act applied. The Undertaking contained

recitals referring to the claimant's

application and its refusal and the

Respondents proceeded to undertake to

grant permission for the construction of

hotels, theatres or structures for the

purpose of entertainment or any

combination thereof subject to conditions

in relation to. .. (being the matters

specifically mentioned in Section 57(3) of

the Act).

The Respondents submitted that the

delivery of the Undertaking was a

complete answer to the claimant's claim

for compensation. The Official Arbitrator

stated a case for the opinion of the High

Court in which he raised questions as to

whether the Respondents had power to

give a valid Undertaking to grant Planning

Permission in accordance with Section 57

(3) of the Act and, if they had such a

power, whether the Undertaking actually

furnished was valid and had the effect of

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