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GAZETTE
APRIL 1977
RECENT IRISH CASES
CERTIORARI -
FISHERY LAWS
Conditional order of Certiorari
discharged as conviction for entering
exclusive fishery limits valid.
Application to make absolute, not-
withstanding cause shown, a
conditional order of Certiorari
granted to the prosecutor by Butler J.
on 3 June 1976 directing Justice
McCourt to send before the Court,
for the purpose of being quashed, an
order made by him on 28 May 1976.
The prosecutor, Oprea Ion
Neculai, is master of the fishing
vessel, Negoiu. He was charged
under the Fisheries Consolidation
Act, 1959, with the following
offence, that the Negoiu did on 25
May 1976 unlawfully enter within
the exclusive fishery limits of the
State, contrary to S. 221 of the 1959
Act. On May 28 the District Justice
struck out the first two charges, but
found the prosecutor guilty on the
third charge, and imposed a fine of
£50 with £100 for expenses, and
ordered that the fish and fishing gear
on the vessel be forfeited.
The prosecutor relied on Gannon
J.'s decision in
The State (Emile
Coyan)
v. District
Justice
O'Donovan —
unreported, 21
December 1973. However, the form
of the charges and the nature of the
conviction in Coyan's case are
distinguishable from this case. In
Coyan's case, the charges were laid
upon the basis that two separate
offences could be committed against
S. 221, namely (1) the entry within
the exclusive fishery limits, and (2)
once a boat had entered these limits,
a person on board could then fish or
attempt to fish. On charge number
two, relating to the forfeiture of fish
and fishing gear, Gannon J. found
that this Section created only one
offence, and dismissed the
application. The Section does
undoubtedly only create a single
offence, that of entering the exclusive
fishery limits.
It was submitted by the prosecutor
that if, apart from being charged with
entering the exclusive fishery limits, it
could be alleged that a person on
board fished, then, though charged
with a summary offence, he would be
entitled to a book of evidence as if he
4
were charged on indictment This
contention cannot be entertained in
view of the Supreme Court decision
in
Attorney General (Ó Maonaigh) v.
Fitzgerald
- (1964) I.R. 258 -
which deals with duplicity in relation
to dangerous driving under S. 53 of
the Road Traffic Act 1961. In these
circumstances, where the Justice
heard alternative charges, his order
was good and valid. Accordingly the
cause shown must be allowed, and
the conditional order of Certiorari
must be discharged.
The State (Neculai) v. District
Justice McCourt
— Finlay P. —
unreported - 27 July 1976.
CONTRACT - BREACH OF
Due to defects in workmanship and
materials in building a house, plaintiff
purchaser awarded £2,305 damages
for breach of contract
The plaintiff now resides in
Rushbrooke, Co. Cork. In April
1973 she was an air hostess in Aer
Lingus and decided to invest some
capital in the purchase of a house to
provide an investment. The defendant
company is a building contractor,
and the plaintiff agreed to purchase
for £4,000 a site in Castleknock, Co.
Dublin, by way of lease for 900 years
from 1 January 1970 subject to an
annual rent of £5. By contract in
writing of April 1973 the plaintiff
agreed to purchase an uncompleted
house known as site 12, Park View,
for £15,000. The sale was completed
by a lease of July 1973. The plaintiff
duly paid £4,000 for the site, and a
total of £15,632 for the house, and
took possession in August, 1973.
No valid planning permission had
been obtained for the house
purchased, and accordingly the house
was an "unauthorised structure"
within the Planning and Development
Act, 1963. It is obvious that this
failure of the lessor, who is also the
builder, is a breach of the covenant
for quiet eqjoyment. It is nevertheless
settled that no remedy can be granted
for breach of covenant for quiet
enjoyment until damages can be
claimed for disturbance of such
enjoyment. It is therefore proposed
that a declaration be made that no
proper planning permission has been
obtained, and to give liberty to either
party to apply.
The plaintiff also contends that the
house was not built in an efficient or
workmanlike manner, or with proper
materials, in accordance with the
plans and specifications. It is
contended that there were a large
number of specific defects in work-
manship and in materials, and the
plaintiff claims the cost of rectifying
these. Due to these defects, the
plaintiff alleges that the defendants
failed to give her what she contracted
to buy, namely a soundly con-
structed house of high quality,
instead of having in fact a house of
poor quality. The reasons for this
contention were: (1) the high price for
the new house, (2) the good
residential area in which houses of
superior workmanship should be
erected, (3) the general appearance
of the interior should match that of
the exterior. It is clear that the
plaintiff did not get the house she
reasonably expected, as much of the
work and material was of cheap
quality. There was necessarily more
divergence between the evidence
offered by experts on each side than
is usual in such circumstances. In
view of the totally unmeritorious
nature of defendant's work, and the
unsatisfactory attitude of defendant's
correspondence, the plaintiff was
right to stop them from continuing
the alleged improvements. There was
a dispute about the built-in
wardrobes in the bedrooms. The
plaintiff architect states that they are
a cheap and shoddy job, and that it
would cost £600 to rectify; this sum
will be allowed.
The plaintiff was undoubtedly
entitled to a well built, well fur-
nished and well fitted house.
The expert witnesses on each side
gave contradictory accounts of the
various amounts of damage sus-
tained. The plaintiff wished to have a
house conforming to high standards
while the defendants merely sought
to put things right. A total of
£2,200 damages is allowed in respect
of defects in workmanship and
material. However, the claim for the
purchase of hardware, furniture,
lamp shades, the landscaping of the
garden together with purchaser's
stamp duty and legal expenses will
not be allowed.
The plaintiff claimed £160 for
journeys from Cork to Dublin to
discuss matters with the defendants,
and the sum of £75 will be allowed. It
must be remembered that this house
was essentially not built as a
residence for the plaintiff, but as an
investment. Despite all defects,
however, the house was nevertheless