338 / 346
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