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GAZETTE
SEPTEMBER 1983
the Act of 1976 must "primarily be used
to secure the protection of the Family in
the Family Home and all other claims to
the premises that constitute such home
must remain secondary to it".
The Court held that by seeking the
case stated Mrs. Somers had already
obtained a reprieve of twelve months on
top of the years of delay resulting from
protracted legal proceedings during
which time she had the use of Mrs.
Weir's home, and that the defence
sought to be made in the present
proceedings was a delaying tactic,
simply to allow further time during
which proceedings, (on their face
appearing to be statute barred) could be
commenced.
The possibility of
expediting such proceedings was
declared to be minimal and accordingly
the required injunction was granted to
Mrs. Weir who had done nothing save
suffer the loss of her house and the
unconscionable delays of the law.
It was noted that Mrs. Somers who
was also an entirely innocent party may
have some equity in relation to the
premises, certainly an equity against
Terence Weir and undoubtedly an
unanswerable claim against her
solicitor; she did not, however, have any
equity against Mrs. Weir.
The questions in the case stated were
answered as follows:-
1. Q. Did the order of the Supreme
Court vest the leasehold interest
in the family home in Mrs Weir?
A. No, but the proper inference from
the Order is that the premises are
the family home within the
meaning of the Act, of 1976.
2. Q. In the proceedings by Mrs Weir
against her husband did the High
Court vest the leasehold interest
in the Family Home in Mrs Weir?
A. Not as such but since it is declared
that she is entitled to a half share
in the leasehold interest in the
premises she was thereby entitled
to have the legal estate in such
half share conveyed to her and is
to be treated as a person having
such legal estate.
3. Q. Does the Order of the Supreme
court entitle MrsWeir to the relief
sought in these proceedings.
A. Not as such.
4. Q. Does the estate or interest dealt
with in the proceedings referred
to at 2 above entitle Mrs Weir
to the relief sought in these
proceedings.
A. Yes, as indicated above.
5. (a)
Q. Does the purported assignment
by Terence Weir to Mrs Somers
create any estate or interest in the
Mrs Somers in the premises.
A. No, save that the Mrs Somers may-
have an equity against Terence
Weir and not otherwise.
(b)
Q. Did payment by Mrs Somers to
Terence Weir as a purported
purchase price create any estate
or interest in Mrs Weir in the
Premises.
A. No.
6. Q. If the Answer to 5 (a) or (b) is Yes
does any such estate or interest
provide Mrs Somers with a de-
fence to Mrs Weir's proceedings
herein.
A. No.
Margaret Weir
v.
Sandra Somers.
Supreme Court, (per McCarthy J. Nem.
Diss.) 18thMarch, 1983. Unreported.
Attracts Campbell
BANKING
Constitutionality of Section 5(2)
Industrial and Provident Societies
(Amendment) Act, 1978 - restrictions on
the conduct of the business of banking by
a Society - Constitution of Ireland,
Article 40(3), (6)1.lii.
The first named Plaintiff (the
Society) is engaged in the business of
banking in accordance with its powers as
a Society registered under the Industrial
and Provident Societies Act, 1893. This
business which consists in the
acceptance and holding of deposits from
members of the Society and the making
of loans to members expanded steadily
since the registration of the Society in
1958, with deposits amounting to
£13.700,000 and advances amounting to
£11,700,000 at the date of the
commencement of the proceedings.
Under subsection 4 of Section 7 of the
Central Bank Act, 1971 Industrial and
Provident Societies were exempted
from the provisions under that Act
providing for the requirement of a
banking licence from the Central Bank
and for the supervision of banks by the
Central Bank. Section 5(2) of the
Industrial and Provident Societies
(Amendment) Act. 1978 (the Act)
prohibiting such Societies from
accepting or holding deposits after the
end of a period of five years
commencing at the date of the passing of
the Act, if taking effect, would render it
practically impossible for the Society to
carry on a banking business profitably,
the Act also prohibiting the raising of
loans by Societies other than a loan
made by a bank.
The Society and the second named
Plaintiff, a shareholder in and a member
of the Management Committee of the
Society sought a declaration in the High
Court that the Act was invalid having
regard to the provisions of the
Constitution. Despite the wide terms of
the Declaration sought it is clear that the
invalidity alleged arose only in respect
of Part II of the Act dealing with
xxxi
Industrial and Provident Societies, in
particular in relation to Section 5(2).
Both Plaintiffs contended:
1. The Act and in particular Section 5(2)
thereof constitutes an unjust attack
on property rights contravening
Article 40(3) of the Constitution in
that any attack on the business and
profitability of the Society is an
indirect attack on the property rights
of the Second Plaintiff in his
investment as a shareholder in the
Society. The legislation in effect
wholly
eliminated
without
compensation the banking business
of the Society as it could not
profitably use bank loans as a source
of funds. There was no guarantee that
if the Society changed into a company
in accordance with the provisions of
the 1893 Act that a licence to engage
in banking would be issued to it.
2. That the legislation is an interference
with the personal right to freedom of
association guaranteed to citizens by
Article 40(6)1. iii. of the Constitution
as it prohibits the accomplishment of
the purpose for which the second
Plaintiff and his associates had joined
together to achieve.
The claim of the Plaintiff was rejected
by the High Court. The Supreme Court
held in rejecting the appeal that:
1. As the second Plaintiff is a citizen
with
locus standi
if his personal rights
are infringed it is unnecessary to
consider the argument that the
Society being a creature of Statute
Law
does
not
enjoy
that
constitutional protection.
The Court rejected the submission
made on behalf of the Attorney
General that a shareholder in an
incorporated body such as the Society
whilst paving various contractual
rights in its relations with such a body
has no property rights in its assets or
business, stating that the Second
Plaintiff has to the extent of his
investment on interest in and
contractual rights arising from the
Society and property rights capable
of being harmed by injury done to the
Society relying on
East Donegal Co-
operative
v
Attorney General,
[19701
IR317, and the judgment of Kenny J.
in
Central Dublin Development
Association
v
Attorney General,
109
ILTR69.
The Court noted the conclusions of
the Trial Judge on the evidence: the
reason why Societies such as the
Society had been exampted by
Section 7 (4) of the 1971 Act was that
there were at that time only two
societies carrying on a small business
without an appreciable risk to the
public at large. None of the Societies
taking deposits in 1976 and 1977 were
operating their businesses in
accordance with the criteria applied