333 / 346
GAZETTE
SEPTEMBER 1983
legislature, the judiciary and the
executive. The Section accordingly
prohibits actions which prevent or
obstruct the wide range of activities
legislative, judicial or executive
which are involved in the government
or the governing of the State. Further
it applies to the prevention or
obstruction (by some violent means)
of the exercise or performence of any
individual legislator, Judge, member
of the executive or officer or
employee of the State of his
functions, powers or duties. It is not
even expressly required that such
individual should have been so
prevented or obstructed in the course
of those duties, or indeed that the
obstruction should have taken place
with that or any other particular
intent. However, the act complained
of must constitute an attack on the
State through one of its constitutional
organs. As Kehoe had attacked an
officer who was leading a substantial
force of Gardai in the clear
performance of a duty imposed by
law on the Government to protect a
foreign mission, he was guilty of an
offence under Section 7.
The
appeal
was
accordingly
dismissed.
D. P. P. -v- Patrick J. Kehoe Court of
CriminalAppeal (perMcCarthy J. Nem.
Diss.) 7 February 1983 —Unreported.
Michael Staines
CONVEYANCING
Contrast - Misdescription of Property -
EfTect of General Condition 21 of 1978
Edition of General Conditions of Sale of
the Incorporated Law Society - Vendor
could not compel Purchaser to complete
purchase until amount of compensation
was determined In accordance with
sub-section (2) of General Condition 21
of Contract.
The Plaintiffs (the Purchasers)
contracted to purchase certain land for
£306,000 from the Defendants (the
Vendors). The Plaintiffs instituted
proceedings against the Defendants
alleging that they entered into the sale
on the faith of certain representations
made to themby the Defendants or their
agents which they claimed were false
and misleading. They claimed that they
were entitled to relief under condition
21 of the Contract for Sale being a claim
for compensation for the mis-
description. They also claimed specific
performance of the contract with an
abatement of £100,000 of the purchase
price as compensation. The Defendants
denied all allegations of mis-represent-
ation and countejclaimed for specific
performance of the Contract. The
parties had agreed to go to arbitration
on the question of whether Condition 21
applied to the case and, if so, what
amount of compensation, if any, the
Plaintiffs were entitled to.
The matter before the Court was to
determine:
(a)Whether, if the Plaintiffs were
successful in making a claim for
compensation under Condition 21,
they were entitled to receive such
compensation by way of an
abatement of the purchase price.
(b)Whether, the Defendants were
entitled to insist upon the closing of
the sale before determination by
arbitration of the dispute as to
compensation and the amount of
same and
(c)Whether, if the answer to (b) was in
the negative, the Defendants were
entitled to insist upon closing the sale
prior to the arbitration, with the
Defendants agreeing to hold on joint
deposit the amount claimed by the
Plaintiffs pending the outcome of the
arbitration. On these points the
Court held:
(a) that if the Plaintiffs were entitled to
compensation at all theywere entitled to
it out of the purchase money
(b) that the Plaintiffs could not be
forced to close until such time as the
amount of compensation, if any, and
therefore the amount of the balance of
the purchase price had been ascertained
(c) while in many cases it would be
sensible for the parties to enter into a
supplementary agreement and to close
the sale retaining the amount of the
compensation on joint deposit, the
Court could not compel the Plaintiffs to
close the sale before the question of
compensation had been determined.
Valentine Keating, Arthur Molloy,
George Roe
-v-
The Governor and
Company of the Bank of Ireland Regin-
ald Brentland and Heather King - High
Court (per Barrington J.) 30 July 1982. -
Unreported.
Colin Keane
CONVEYANCING
Assignment ofFamily Home • No consent
form Spouse • entitlement of Spouse -
Rights of Purchaser.
The Plaintiff (Margaret Weir)
married Terence Weir the legal owner
of the house the subject matter of these
proceedings on 5 July, 1961. In October
1973 Mrs. Weir left the house with her
four children to reside in a Dublin Cor-
poration dwelling. All expenses
including rent were borne by MrsWeir.
On 20 November, 1974 Mr. & Mrs. Weir
entered into a Seperation Agreement
which was silent as to the Family Home.
XXX
On 2 August, 1976 Terence Weir
entered into a written agreement to sell
his leasehold interest in the premises to
the defendant, Mrs. Sandra Somers.
The sale was closed relying on a faulty
declaration under the Family Home
Protection Act prepared by the
purchaser's solicitor without any real
enquiry as to the facts or without any in-
spection of the separation agreement.
Terence Weir executed the statutory
declaration thus prepared and the sale
was closed on 17 August, 1976.
In April, 1977 Mrs. Somers agreed to
sell the premises. The Purchaser
required proof that the provisions of
Section 3 of the Family Home Protect-
ion Act, 1976 had not been breached
and
accordingly
Mrs.
Weir's
retrospective consent in writing to the
Assignment to Mrs Somers was
required. This was refused by Mrs. Weir
who claimed she was entitled to a pro-
prietary interest in the contract
premises. Mrs. Somers instituted High
Court proceedings seeking an order
under Section 4 of the 1976 Act dispens-
ing with the Defendant's consent to the
Assignment and such Order was granted
by the High Court. MrsWeir appealed
to the Supreme Court and the decision
of the High Court was reversed. The
Supreme Court declared the purported
conveyance of the Family Home to Mrs
Somers to be void. Further proceedings
were brought in the High Court byMrs.
Weir against her husband and on foot
of that claim it was declared:
(a) that the premises 111, Maryfield
Cresent, Artane, in the County of
Dublin was a Family Home as
between the Mr and Mrs Weir and
(b) that the Mrs Weir was entitled to a
half share in the leasehold interest in
the premises.
This order did not purport to vest any
legal estate in Mrs. Weir who by
ordinary civil bill initiated the present
proceedings claiming an injunction to
restrain Mrs. Somers or any other
occupiers of the relevant premises from
remaining on or continuing in
occupation of them as a dwelling. These
Proceedings came before the Circuit
Court Judge on 12 February 1982 Who
stated a case for the High Court. The
case stated was signed/Jby the Judge on
the 2nd of April, 1982 but for no app-
arent reason was not lodged .in the
Supreme Court office until 4 October,
1982. It was argued in the High Court on
21 February, 1983..
The Family Home Protection Act,
1976 was reviewed and it was noted that
the Act came into force on 12 July, 1976
five weeks before the execution of the
void Assignement on 17 of August,
1976. Sections 3,4 and 5 were quoted in
particular with reference to the present
case and related proceedings and it was
concluded that in the view of the court