337 / 346
GAZETTE
JULY/AUGUST
1983
its decision within "the appropriate
period" (as technically defined, but
basically five weeks from receipt of the
application).
Section 10 of the 1969 Act covers the
situation where Permissions are required
under that Act and under the Local
Government (Planning & Development)
Act, 1963 ("the 1963 Act") and provides
that, in such circumstances, "the appro-
priate period" for the purposes of Section
26 (4) of the 1963 Act is, in effect, to be
construed (in unappealed cases) as being
the later to expire of (a) the period of two
months stipulated in Section 26 (4) afore-
said or (b) the period of five weeks
beginning on the date on which the
decision under the 1969 Act is given or is
regarded as having been given.
On 3 June, 1975 the Plaintiff applied to
the Defendant for Permission under
Section 4 of the 1969 Act, to use premises
other than for human habitation in a
submission providing for the construc-
tion of a building with residential
accommodation within the property.
Permission was refused on 4 July, 1975
"for the reason that such change of use
could result in a reduction in the supply of
housing in the functional area of the
Corporation".
An application had already been made
for a Permission under the 1963 Act at the
time at which the Defendant had
considered the foregoing submission.
There was, accordingly, the prospect
that, if the refusal of 4 July, 1975 were
found to be invalid, the inter-action of the
various provisions mentioned would be
such that the Plaintiff would be regarded
as having been awarded by default
Permissions under the 1969 Act and the
1963 Act (without conditions).
The Plaintiff could have appealed to
the Minister against the refusal, but chose
to pursue the matter by way of plenary
summons claiming:—
(a) a Declaration that the refusal was in
conflict with the facts upon which it
purported to have been based, was
unreasonable, and contrary to
natural justice.
(b) an Order setting aside the refusal
and declaring that the Plaintiff be
deemed to have obtained a Permis-
sion by default on the expiration of
five weeks from 3 June, 1975.
The Plaintiffs claim failed in the High
Court, and her appeal against that
decision was dismissed by the Supreme
Court which HELD that, although the
Defendant had reached an invalid
decision in refusing the application under
the 1969 Act, the equitable jurisdiction of
the Courts should not be exercised to
defeat the manifest purpose of the legis-
lation, where there has been no allegation
of impropriety or the like (save a mistake
in law), and where a statutory remedy had
not been availed of. In so deciding the
Court followed the principles of its own
findings in
The State
(Abenglen
Properties
Limited)
-v-
Dublin
Corporation
(5 February, 1982). In the
instant case, the Court determined that
the refusal was an invalid decision, but
stated that "it was never the intention of
the legislature that mistakes by Planning
or Housing Authorities... would be used
as a basis for abandoning the statutory
procedures and seeking to use the Courts
as some form of licensing or enabling
Authority in a field in which the legisla-
tive and executive organs of government
have prime responsibility".
Creedon
-v-
The Lord Mayor Aldermen
and Burgesses of the City of Dublin.
Supreme Court (per McCarthy J. Nem.
Diss.) 11 February 1983 - Unreported.
Patrick Fagan
PROBATE
Purported bequest of a farm by a Testatrix,
who in fact held the entire shareholding in a
private limited company which owned the
property, should be regarded as a gift of the
testatrix's shareholding in that company.
This case involved the construction of a
will, made in Germany and written in
German, of a German national domiciled
in Germany and, in particular, of a clause
purporting to bequeath a farm in Ireland
to the Protestant Church in Ireland.
Before dealing with the problem of
construction, the Court dealing with the
proper law to be applied in construing the
will decided that there was no necessity to
choose between German and Irish law
since, on the evidence of experts in
German law, the primary principle of
construction of Irish law that, whether or
not the case contains a foreign element a
will is to be construed in accordance with
the intention of the testator to be
gathered from the will, is also incorpor-
ated in the German legal system.
The main problem of construction
arose by reason of the fact that the
Testatrix was not the legal owner of the
farm in Ireland, but that she or her
nominees held the entire shareholding in
a private limited company that owned
three parcels of land in Co. Laois
comprising in all 175 acres, together with
buildings, livestock and farm machinery.
The company's only other liquid assets at
the date of the Testatrix's death were a
small holding of bank stock and cash.
The company had been formed or
acquired by the Testatrix and her
husband and its whole purpose was the
acquisition, holding and running of the
farm in question.
The Court stated that the will appeared
to have been prepared in haste and that
the notary who drafted it could not have
discussed with the Testatrix how she
acquired the beneficial interest in the
lands in Ireland, and neither could he
have been conscious of the fact that the
legal owner of the lands was a limited
company and not the Testatrix in her
personal capacity. The Court also had
regard to the fact that the expression
* "farm" was used in the German text of
the will, which the German legal experts
in evidence agreed was one generally used
in German only when referring to lands
held abroad.
It was
HELD-.—
1) That the text of the will was loosely
drawn and loosely expressed by the
Testatrix and should be construed as
referring to her property in Ireland;
2) That the intention of the Testatrix
was to hand over the entire farming
enterprise to the beneficiary named
in the will (the identity of whom was
originally required to be construed
by the Court but was subsequently
agreed by the parties to be the
Lutheran Church, of which the
Testatrix was a member);
3) That the gift of the farm in Ireland
should be regarded as comprising a
gift of the farming business which
the Testatrix and her husband, and
ultimately the Testatrix on her own,
operated in Ireland through the
medium of a limited company and
that this gift would capture the entire
shareholding of the Testatrix in the
company of which she was the
beneficial owner or over which she
exercised a power of disposition at
the date of her death.
In the matter of the will ofAntonie Marie
Bonnet, deceased, Robert William Roche
Johnston
-v-
Heinz H. Langheld & Ors. -
High Court (per O'Hanlon, J.) 18
November, 1982. - Unreported.
Sarah Cox
RELATOR ACTION — COSTS
No Liability on the Attorney General for
costs because he gave his flat for the
institution of legal proceedings.
Dublin Corporation (the first named
Defendants) sought to have the Attorney
General held liable to pay damages on an
undertaking in the High Court. The
Attorney General denied that he gave any
such undertaking or had authorised any
such undertaking.
The proceedings arose from Dublin
Corporation's decision to build
municipal offices on the site of the early
Viking settlement at Wood Quay,
Dublin. Fr. Francis X. Martin sought an
injunction restraining the Corporation
from building on the site. Fr. Martin
required the fiat of the Attorney General
to institute proceedings. The fiat was
given on the basis that Fr. Martin would
defray the Attorney General's costs and
expenses and on the understanding that
the Attorney General expressed no
opinion on the legal issues involved.
xxxiv