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GAZETTE

NOVEMBER 1983

The action proceeded with the

Attorney General as Plaintiff "at the

relation of Francis X. Martin". Interim

and interlocutory injunctions were

granted to Fr. Martin in the High Court.

The interlocutory injunction was

discharged by the Supreme Court. The

Supreme Court also dismissed the action

as being unsustainable.

Dublin Corporation claimed in these

proceedings that the Attorney General

should be held liable for the damage and

loss sustained by the Corporation as a

result of the grant of the interim and

interlocutory injunctions. The orders of

the High Court on the granting of the

interim injunction on 10 January, 1979

referred to the usual undertaking as to

costs in terms "as the plaintiff by his

Counsel undertaking . . . ." This was

repeated in subsequent orders. This

undertaking related to the ordinary

undertaking which a plaintiff seeking

interim or interlocutory relief is expected

to give in return for the exercise of the

Court's discretion.

The High Court dismissed the

Corporation's claim against the Attorney

General. The Corporation appealed to

the Supreme Court. The Supreme Court

held in dismissing the appeal that:

1. The relevant undertaking was not

given by the Attorney General but

by Fr. Martin, mistakenly described

in the Orders in question as "the

Plaintiff.

2. The giving of consent or fiat by the

Attorney General to the institution

of proceedings did not indicate any

approval of the proceedings by the

A t t o r n ey Ge n e r a l. In the

circumstances there was no liability

on the Attorney General.

The Attorney General at the relation of

Francis X. Martin

-v-

The Right Honour-

able the Lord Mayor, Aldermen and

Burgesses of Dublin and the Commis-

sioners of Public Works in Ireland.

Supreme Court (per O'Higgins C.J. Nem.

diss). 16 February 1983. - Unreported.

Eamonn G. Hall

SALE OF LAND

Registered lands — Registration of

Transfer delayed — Registration of Lis

Pendens — Registration of Title Act 1964.

The Plaintiffs agreed on 8 November

1979 to purchase from Patrick Broughan

certain registered lands for the sum of

£340,000. The full purchase money was in

due course paid to Mr. Broughan and on

7 December, 1979 he executed a transfer

in favour of- the Plaintiffs. For various

reasons registration of the transfer was

delayed until 25 February, 1981. Earlier,

on 9 May, 1980, the Defendants

commenced proceedings against Mr.

Broughan in the High Court seeking a

declaration that he held the lands as

trustee for them. The proceedings were

on the same day registered in the Land

Registry as a Lis Pendens. Although

informed of the purchase and transfer of

the lands to the Plaintiffs the Defendants

declined to vacate the Lis Pendens and

proceedings were brought by the

Plaintiffs in the High Court seeking an

Order of the Court vacating same. The

Plaintiffs were successful in the High

Court and the Defendants appealed to

the Supreme Court where it was HELD,

upholding the decision of the High Court,

that although the provisions of Section

51(2) of the Registration of Title Act 1964

expressly provide, in relation to transfers,

that "until the transferee is registered as

owner of the land transferred, that

instrument shall not operate to transfer

the land", that section of the Act deals

only with the effect of the instrument of

transfer as such. In the present case the

Plaintiffs had not to rely merely on this

instrument. They had purchased the

lands pursuant to a contract and had paid

over the full purchase money. On the

execution of the transfer upon payment

of the purchase money, the entire

beneficial estate and interest in the lands

passed to the Plaintiffs and the registered

owner became a bare trustee for them.

This had the effect of vesting in the

Plaintiffs a right over the registered land

such as was contemplated by Section 68

(2) of the Act. The Plaintiffs' right arising

from their contract and payment of

purchase money would not survive

against a registered transferee of the lands

or against a chargee for valuable

consideration, but the Defendants were

not such.

A Lis Pendens is a burden registered on

the folio under Section 69 of the Act.

Section 74 of the Act gives priority to the

burden registered first in time. This

priority applies, however, only between

burdens as such. The right of the

Plaintiffs arising from the contract and

the payment of the full purchase money

could not have been registered as a

burden under Section 69, and is therefore

not affected by any priority given to such

burdens under Section 74. The interest of

the Plaintiffs was not subject to the Lis

Pendens, which was ordered to be

vacated.

Bryan Coffey and Richard Moylan

-v-

Brunel Construction Company Limited (In

Voluntary Liquidation) - (Supreme Court)

(per O'Higgins

C.J., Hederman J.

concurring, and per Griffin J., Hederman

J. concurring). 13 May, 1983.-Unreported.

D. Seymour Cresswell

Edited by Gary Byrne

Copies of judgments in the above cases are

available to members on request from the

Society's Library.

The Incorporated Law

Society of Ireland

DINNER DANCE

Blackball Place,

Dublin 7.

FRIDAY, 18th NOVEMBER, 1983

Dinner 8.30 p.m.

Dancing 10.00 p.m. - 2.00 a.m.

Tickets: £18.00

XXXV