236 / 264
means of the Defendant and/or the
Plaintiff as the court considered
reasonable.
3. Pursuant to Section 5 of the
Family Law (Maintenance of
Spouses and Children) Act 1976 an
order directing the Defendant to
pay her periodical payments in
support of Plaintiff and of each of
the dependant children of the
Plaintiff of such amount and at
such times as the court might
consider proper.
4. Pursuant to Section 5 (2) of the
Family Home Protection Act
1976 an order directing the
Defendant to pay to the Plaintiff
such amount as the court
considered proper to compensate
the Plaintiff and the two younger
children who were claimed to be
dependant children for the loss
arising from the deprivation of
their residence in the family home.
The Family Law (Maintenance of
spouses and Children) Act 1976 and
ihe family Home Protection Act
1976 were enacted after the court
proceedings and the consent in 1971-
1973. Application was made to Mr.
Justice Doyle on the net point of the
validity of the Defendants' claim that
the Plaintiff was in effect estopped
from pursuing whatever rights she
might be entitled to under the Acts in
question by reason of the consent and
that the matters in issue might be
regarded as res judicata. An Appeal
was brought to the Supreme Court
from the decision of Mr. Justice
Doyle.
Held:
per Walsh J. (nem. diss.):
(1) The claim by the Plaintiff in this
case fell within the provisions of
Section 5 of the Family Law
(Maintenance of Spouses and
Children) Act 1976.
(2) It was somewhat difficult to say,
and unnecessary at the moment
to decide, what was the legal
effect of making the consent in
1973 part of the order of the
court where one essential part of
the consent was that the petition
for divorce should stand
dismissed.
(3) Section 8 of the Family Law
(Maintenance of Spouses and
Children) Act 1976 makes
express provision for the position
of an agreement in writing
( i n c l ud i ng a S e p a r a t i on
Agreement) entered into after the
commencement of the Act. The
types of agreement referred to
would include the consent in the
present case if it had been entered
into after the commencement of
the Act. It was clear from the
section that a separation
agreement entered into after the
date of the coming into force of
the Act of 1976 does not amount
to an election, even if that were
possible, to forego the benefit of
the provisions of the Act but
effectively constitute no more
than a factor to be taken into
account by the Court in
determining an application
brought before it under the Act.
(4) A fortiori, the operation of the
Act could not be affected by a
separation agreement or other
document in the nature of the
consent in this case entered into
before the passing of the Act
unless there was an express
provision to the contrary in the
Act.
(5) It is not possible to contract out
of the Act by an agreement made
after the Act came into force or
by an agreement entered into
before the legislation was enacted.
(6) It was clear from the whole
structure of the Act that its
purpose is to deal with the
situation of the parties at the time
the proceedings are brought under
the Act and the primary function
of the Act is to ensure that proper
and adequate maintenance is
available in accordance with the
provisions of the Act to spouses
and children. The basic question
to be decided is whether at any
given time there is a failure by one
spouse to provide reasonable
maintenance for the support of
the other spouse and for any
dependant children of the family
of the spouses.
HJ). and PJ>. — Supreme Court
(per
Walsh J. with O'Higgins CJ . and
Griffin J.) - 8 May 1978 -
unreported.
CONTRACT
Illegal Contraet — Onus on
Defendant to establish illegality.
The sole issue arising in this case on
the question of liability was as to
whether the contract admittedly
made between the Plaintiff company
and the Defendant for the sale and
purchase of potatoes was an illegal
contract or not. The Contract had
undoubtedly been broken by the
Defendant without any justification
and must, unless it were held to be an
illegal contract, give rise to an award
for damages for its breach. The facts
are irrelevant to the legal principles
enunciated.
Held:
(per Finlay P.) that:
(1) As a matter of law, the onus was
on the Defendant to establish to
the courts satisfaction that, as a
matter of probability, the contract
was, at the time of its formation,
an illegal contract.
(2) If'the contract in question was
one which, on the apparent
intention of the parties at the time
of its formation, could be and
would be carried out in a legal
fashion then, even though one of
t he p a r t i e s, name ly t he
Defendant, in reality intended to
carry it out in an illegal fashion it
was enforceable.
(3) If, on the other hand, the
acknowledged and accepted
intention of both of the parties at
the time of the formation of the
contract was that in the event of
the happening of certain events
the contract would be carried out
by a smuggling operation then it
would be unenforceable and
contrary to public policy and
could not be upheld by the court.
(4) The onus being on the Defendant,
he had failed to discharge it and
to establish to the court's
satisfaction as a matter of
probability that the agreed
understanding between him and
the Plaintiff was that the contract
should, in the happening of
certain events, be carried out by a
smuggling operation.
(5) That the appropriate measure of
damages was that provided by
section 51 of the Sale of Goods
Act 1893 and on the particular
facts, damages were awarded
against the Defendant in the sum
of £59,218.
Whltecross Potatoes (International)
Limited
v.
Raymond Coyle
— High
Court (per Finlay
P.).
23 February,
1978 - unreported.
• Note:
The Report in the May issue
of
Thomas Fortune
v.
P.
E.
Jacob
and Co. Ltd.
was incorrect in so far
as the last sentence of the third
paragraph of the Report read "There
was no lorry in question." Instead the
sentence should have read: "There
was no wooden strip on the lorry in
question." This mistake is regretted.