The Gazette 1978

GAZETTE

APRIL 1978

Appeal asked the Supreme Court to

order a new trial on the issue of

damages or alternatively that it

should determine the compensation

to which he was entitled. The

Defendant served no Cross-Notice of

Appeal. Counsel for the Defendant

argued that it was unnecessary to do

so as in his view since the Plaintiff

had asked the Court to assess the

damages, he could contend that the

damages were excessive without

serving a Notice to vary the High

Court Order. Kenny, Lheld that this

was not a correct interpretation of the

Rules. Order 58, r.8 allows the

Supreme Court to make any Order

necessary, including an Order

varying the High Court Order and

Order 58, r. 10 makes it dear that the

Defendant could contend that the

damages were excessive without

serving a cross Notice of Appeal but

that he may then be penalised in

costs.

Per Kenny, J. "When one party

appeals on the grounds that the

damages awarded are too low, the

other party, if he wishes to contend

that they were too excessive, must

serve a notice giving that information

to the party appealing. If he does not,

the other party may ask for an

adjournment or the party applying to

vary the High Court Order may be

penalised in costs."

The Supreme Court varied the

High Court Order by substituting the

figure of £2,243 for £4,000 and

made no Order as to costs.

In the Matter of the Trusts of the

Will of Simon Sheil and in the Matter

Issue between John A. Browne

and

Most Rev. Patrick Mulligan,

Francis Gallagher and Ors

Supreme Court (per Kenny, J., with

O'Higgins, J. and Parke, J.) -

unreported - 23 November 1977.

SALE OF LAND

Specific Performance of an alleged

Agreement for lease refused—No

note of date of commencement of

lease.

The Defendants were building

houses on nine sites at Killincy,

County Dublin under a Liccncc, on

lands owned by a merchant bank

("the Bank"). One term of the

Liccnce was that the Bank would

grant Lenses to the purchasers of the

houses built by the Defendants. The

Defendants

had

engaged

auctioneering firm to act as selling

agents for the houses. On 17 May,

1975 the Plaintiffs npproachcd a

director of the auctioneering firm and

expressed interest in purchasing the

house to be built on Site 105. A

brochure which the auctioneer gave

the Plaintiffs opened with the words:

"Wc are now accepting booking

deposits to secure these executive

styled properties now being erected

by Arvan Homes Limited". At the

bottom of the brochure, the words

"Lease 250 years, G.R. £0.5 and

Booking

Deposits

£1,000.00"

appeared.

After some further negotiations,

the Plaintiffs went back to the

auctioneer on 24 May 1975, and told

him that they had decided to buy the

house for £13,800.00, and he told

them they could secure the house if

they paid him a deposit of

£1,000.00. He also told them that a

further £1,500.00 would have to be

paid when the contract was sent to

their solicitors. The completion date

was agreed as 1 March, 1976. The

first-named

Plaintiff gave

the

auctioneer a cheque of £1,000.00,

who wrote a receipt which read—

"Dated

24th

May,

1975.

Received from John Michael

O'Flahcrty of Churchview Road,

Killiney the sum of £1,000.00 on

Site 105, Grenville Road. Killiney

at the fixed price of £13,800.00.

This deposit is taken subject to

Contract. Also to the approval of

a loan to the Purchaser of

£6,000.00.

Redpath Properties Limited".

On 28 August, 1975 the Bank

made a Lease of the site to the

Defendants for 250 years from 29

September, 1970 at a rent of £0.5 per

annum. Also in August 1975, the

Defendants' Solicitors sent a draft

con t r act and title documen ts

(including a lease) to the Plaintiffs'

Solicotors. who amended it and

returned it, but it was never signed by

either party. The Defendants declined

to go on with the transaction, as they

had secured a purchase at a higher

price, and they returned the deposit.

The Plaintiffs' claim was for

specific

performance

the

agreement of 24 May, 1975. Their

Counsel in Court said that he was

asking for specific pcrformarce of a

contract to grant a Lease.

Held: (per Kenny, J.), referring to

Marshall v. Berridge

(1881) 19 Ch.

D. 233,

IV'vse

Russell

(1882) 1 1

L . R. lr. 173 and

Kerns v. Manning

[19351 I.R. 869, that the date of the

commencement of the period for

which the Lease is to be granted is an

essential term in a contract to grant a

Lease if it is to be enforceable*. In this

ease there was no agreement or

reference to this; there was never an

enforceable agreement

by the

Defendants to grant a Lease to the

Plaintiff.

John M. OTlaherty and Catherine

O'Flaherty v. Arvan Properties

Limited. — Supreme Court (Henchy

J., Kenny J. and Parke J.) —

unreported — 21 July, 1977.

TRADE MARKS

Wh en a wo rd f o r wh i ch

registration as a trade mark is sought

in Part A of the Register, is one in a

foreign language, the controller and

the Court must not treat the

application as one for the registration

of the corresponding English or Irish

word. It is irrelevant that the foreign

word, when translated, would have a

"direct reference to the character or

quality of the goods" in such that it

could not be registered because of

infringement of S. 17(i)(d) of the

Trade Marks Act, 1963; what matters

is that the foreign work per se has no

direct reference to the character or

quality of the goods.

The Plaintiffs, engaged in the

manufacture of perfumes and toilet

preparations, applied for registration

as a trade mark the word "Kiku", for

perfumes, cosmetic preparations,

non-medical toilet preparations and

toilet soap. The word "Kiku" is a

word in the Japanese language and

means " ch r ys an t hemum". The

Controller refused the application.

The Plaintiffs appealed to the High

Court under S57 of the Trade Marks

Act, 1963. Kenny J. granted a

declaration that the word "Kiku"

was registrable as a trade mark in

Part A but gave leave to the

Controller to appeal to the Supreme

Court on a specified question of law.

The question of law specified by the

High Court was: "whether when a

word for which registration as a trade

mark is sought is one in a foreign

language the Controller and the

Court must treat the application as

one for the registration of the

corresponding English or Irish

word".

Held: that the question submitted to

the Court would be answered in the

negative. Per O'Higgins, C J . : "It is in

this country that the trade mark is to

be used and it is the people trading in

this country to whom protection is to

be given. The word in question being

not only a foreign word but a word

from a language with which ordinary

people in Ireland have no familiarity

whatsoever, it seems to follow

without question that such a word

can have no meaning and no