The Gazette 1975

Payments made by wife towards purchase of a house or repayment of a mortgage are on the same basis as a trust, and she is entitled to a share in the house as a trust beneficiary accord- ing to her contributions, even though the house is nominally in the husband's name. The defendant husband, Brendan Conway, and the plaintiff wife, Winifred Brady, were married in April, 1961. They lived at first in a flat in Rathgar, but in October, 1963, purchased a house in Killester for £2,200. The husband was then a barman earning £7 a week, and had no savings; he paid a deposit of £220. The wife had inherited £242 on the death of her father, and her mother provided her with more money. She gave these sums to her husband so that he could pay the deposit. The husband had also obtained an advance of £2,005 from the Irish Permanent Building Society, and this enabled him to close the sale and take possession. Despite the financial advances made by the wife, the documents of title were entered in the name of the husband only. This mortgage of £2005 was repayable over 30 years by monthly instalments of £13.65. The husband was unable to pay the instalments regularly but, on seven different occasions, the plaintiff obtained £100 from her mother and brother, who were living in England iin order to pay these instalments. The total amount contributed by the wife towards the purchase of the house was £1,027. There were 5 children of the marriage — 4 daugh- ters and 1 son — born between 1961 and 1971; the eldest daughter died in 1970 at the age of 9. The hus- band remained a barman until 1968, when he began to work as a self-employed electrician earning £35 per week. From February, 1972, he was employed by a company until May, 1974, as an electrician, earning £39 per week and expenses. In the evenings, he worked as a part-time barman in Ballsbridge, and earned £1,306 between May, 1973 and November, 1974. From June to November, 1974, he registered for unemployment benefit and obtained £30.85 per week. The marriage was reasonably happy until 1967, when the husband used to often come home late drunk. In 1971, conditions were so bad that the wife went to reside with her mother in Yorkshire for 10 months. The husband promised to give up drink, if the wife returned, and conducted himself reasonably for a short time. But then he began to drink again, and would only give his wife £13 per week out of the £50 he earn- ed. From 1973, he locked the largest room in the house, turned off the electricity, and disconnected the tele- phone. He then used to play a guitar very loudly with his sister in the locked room while they both drank. There were many assaults and quarrels and Guards were sent for numerous times. From October, 1974, the husband left the house, and went to live elsewhere. The wife is now drawing home assistance, and has ceased to pay the instalments on the house. In July, 1973, the wife brought proceedings under the Married Women's Status Act 1957, claiming that she was entitled to possession of the house in equal

shares with her husband. She also brought proceed- ings claiming custody of the children and payment for their maintenance. Ultimately the two cases were heard together in November, 1974. The correct approach to this case is to apply the con- cept of a Trust to the legal relationship which arises when a wife makes payment towards the purchase of a house or the repayment of a mortgage instalments when the house is in the sole name of the husband. Wh en this is done, the husband becomes a trustee for the wife for a share of the house, which depends on the amount of contributions the wife has made towards the purchase of the house or the repayment of the mortgage. As the cost of the house in 1961 was £2,200, and as the wife paid £1,027 in 1962, it was held that a declaration would be made, that the husband holds the premises as to one half of the beneficial interest therein in trust for his wife. As there is ample evidence that the children are frightened of the husband, their custody is awarded to the wife. Special detailed ar- rangements as to the payments to be made by the husband were set out. As the husband has made no ap- plication for access to the children, this will not be granted until he renews his application later. Winifred Conway v Brendan Conway — Kenny J. — unreported — 3 June, 1975. A planning application in the press must state the purpose unambiguously and accurately, other- wise the County Council are entitled to be re- ferred to the Minister as to whether the applic- ation is a development. Before 1969, James McGurk owned a site on New- town Park, Blackrock, where he owned a plant for mak- ing concrete blocks and some readymix concrete. By a written agreement of 4th June, 1969, the plaintiffs acquired an option to purchase the area. On 28th June there was a planning notice in the press on behalf of McGurk which sought for replacement of this concrete plant, and an application for planning permission was also made at that time. The existing plant erected 30 years previously consisted mainly of a concrete mixer with cement pits, and was 15 feet from the main road. It was proposed to remove the old plant, and to erect instead a modern plant 120 feet from the road. The planning application of McGurk had in fact been drafted by an engineer, McNurney, and the plans in- volved the sites of the proposed new structures. Plan- ning permission was eventually granted by the defendan t County Council on 29th August 1969, subject to re- placement of existing concrete plant. Mr. McGurk re- ceived notification of this permission on 9 October 1969. Later the plaintiffs purchased the land, and the site was conveyed to them on 12 December 1969. As a result of two letters written by the plaintiffs to the defendant Council in January 1970, the planning authority notified the plaintiffs that the operations de- scribed constituted a change of use in development, and consequently they requested the Minister to decide whether the proposed change was deemed to be "de- velopment" or "exempted development". In January, the Minister confirmed by letter-that the matter had been referred to him. 180