The Gazette 1980

DECEMBER1980

GAZETTE

taken over any of the stock-in- trade of the deceased, that there was not a sufficient "clearly dis- cernible connection" between the premises of the Plaintiff and the trade dispute which would justify the picketing of the Plaintiff's own premises. Accordingly, an injunction was granted restrain- ing the picketing of the Plain- tiffs premises in Inchicore pending the hearing of the action. Alice Clcary v. Patrick Coffey and Others, High Court (per McWilliam J.), 30 October 1979 - unreported. Limited description of property in Lease — Surrounding circumstances and correspondence used to ascertain intention of parties at the time lease was granted. The Plaintiff was lessee of premises under a lease dated 21 November 1977 for a term of 10 years from 1 January 1977. The premises were described in the lease as "the lock-up shop premises at shop No. 1, Back Street, other- wise Fair Green, Arklow, in the County of Wicklow". The Plaintiff claimed the lease included a yard with a store and shed at the rear of the shop. The Court looked at the history of the premises and the surrounding circumstances leading to the execution of the lease. The shop in question was Shop No. 1 in a terrace of three shops all owned by the Defendant landlord. Behind the terrace there was a yard and one toilet. It was intended that the occupiers of each of the shops would have the right to enter the yard to obtain access to the rear doors of their shop and presumably to use the one toilet. Shop No. 1 had been let in 1968 to a predecessor in title of the Plaintiff for a term of five years with a clause for renewal. That predecessor in title had erected the (disputed) store with the consent of the Defendant. Ultimately in 1971 the Plaintiff took an assignment of Shop No. 1 and had already or there- after obtained the leasehold interests in both the adjoining Shop No. 2 and in the flat which extended over both shops. The Plaintiff then covered in a LANDLORD AND TENANT

agreements relating to Shop No. 1 i.e. it included the toilet and store and use of the yard. Magno Di Murro v. Elizabeth Childs - High Court (pert McWilliam J.) 14 December 1979 — unreported.

portion of the yard behind Shop No. 1 and made some alterations to the store. This covered-in space was then used for a refrigerator and a machine for preparing potato chips for the fish and chip business the Plaintiff car- ried on in Shop No. 1. The Plaintiff fell into arrears with rent in 1975 and the Defendant in 1976 obtained a judgment against the Plaintiff for the then amount of the arrears. Sub- sequently, an agreement was made on 29 March 1977 between the Plaintiff and the Defendant whereby the Plaintiff agreed to pay the amount of the judgment by instalments and to vacate the overhead flat in consideration of the Defendant granting the Plaintiff a new (fixed term) lease of Shop No. 1 for ten years from 1 January 1977. A Tease pursuant to the agreement of 29th March 1977 was ultimately granted and was dated 21 November 1977 and the Plaintiff continued in occupation under that lease and was apparently also using the yard and store at the rear. Later, the Defendant became exasperated with the way the Plaintiff was using the yard and the way grease from his cooking operations was choking the drain. The Defendant, relying on the wording of the lease, sought to exclude the Plaintiff from the yard and store and ultimately the Defendant blocked the entrance and knocked down the store. Held (per McWilliam J.) that it was relevant that the shop had been used and was, in accordance with the lease, to continue to be used as a restaurant and shop and that the restaurant and shop had, to the knowledge of the Defendant, been at all times used for fish and chips and "take-away" type of business with a rear entrance to the shop from the yard which had been used for the delivery of goods to the shop; also, there was no toilet iq the shop and so the toilet in the yard had been used. It appeared from the evidence, that at the time of the agreement — March 1977 — and of the lease in November 1977 that no specific agreement had been made to exclude from the lease the toilet and the store and the use of the yard. Therefore, it was clear that what was intended to be demised, and what was demised, by the Defendant to the Plaintiff, was the same as had been let in the earlier

PRACTICE AND PROCEDURE

Delay after specific performance order not a bar to forfeiture — Effect of Plaintiff 's delay. Mr. S. agreed to sell No. 3 Dame Lane, Dublin for £60,000 to the first- named Defendant in trust for the second-named Defendant by a Contract dated 15 February 1974. A deposit of £6,000 was paid and the closing date was fixed for 1 March 1975. The Defendants failed to complete and proceedings for specific performance were instituted. These were settled and the terms of the settlement were incorporated in a Court Order dated 10 December 1975 which contained a decree for specific performance with a stay on the order until 10 December 1976. There were provisions for the payment of interest by monthly instalments and for the payment by the second-named Defendant of the costs of the action and the sale. The Defendants made some payments of interest but ceased these payments in August 1976 and their solicitors told the Plaintiffs' solicitors that the second-named Defendant was not in a financial position to close the sale. The Plaintiffs' solicitors re-entered the motion and on the hearing of the motion the Defendants' solicitors indicated that they had no instructions in the matter. At the judge's suggestion a motion claiming an order forfeiting the deposit and rescinding the sale was issued on 7 February 1977, but before it could be heard Mr. S. died, on 3 February 1977, and the mbtion was adjourned generally. In September 1977 the premises were burned down and a Mr. Stafford, who said he was the purchaser, telephoned the Plaintiffs's solicitors and stated that there was nothing he could do about paying the balance of the purchase money at present. Inconclusive negotiations for