The Gazette 1977

GAZETTE

JULY

their skill to carry out a specific work. The contract contains no provision for remuneration in the event of no auction being held. The defendants are thus not in breach of their contract, and no claim is maintainable on a quantum meruit. Accordingly the plaintiff's claim for commission is dismissed with costs. Daniel Morrissey & Sons Ltd. v. Joseph and Bridget Nalty — Gannon J. — unreported — 18 April, 1977. PERFORMANCE Specific performance refused as contract for sale was illegal, as an attempt to defraud the revenue. Claim for specific performance of a contract of sale by the plaintiffs to the defendants of the Croffon House Hotel, Dun Laoghaire, for £190,000. The contract, dated 7 January, 1974, was prepared on the Law Society's standard form. A deposit of £2,000 was paid, and it was signed by the two first defendant brothers, Francis Woods and Thomas Woods "in trust". Nevertheless the contract provided that the purchaser's liability thereunder is jointly and severally binding on them. The plaintiff company was controlled by two brothers, Brian and Anthony Rhattigan, with the Anglo-Irish Bank having a substantial interest. The third named defendant, Investment Holdings International Ltd. is controlled by the Woods brothers. This company was first disclosed to the Vendors by letter from purchaser's solicitor on 19 August, 1974. The whole transaction was far from being the straightforward sale appearing on the contract in writing. T7ie solicitors concerned took part in the conduct of this contract although aware that their clients were dealing in ancillary transactions of which they had no notice. The main ancillary transaction referred to lands at Castletown which the Woods brothers had agreed to sell to the Rhattigan brothers for £25,000. There was a conflict of evidence in relation to most of the incidents in the transactions. At the time the contract for the sale of the Croffon House Hotel of 7 January, 1974, was duly signed by the Woods brothers, the solicitor for the plaintiff left the parties together to complete CONTRACT - SPECIFIC

RECENT IRISH CASES

another transaction; the solicitor for the defendants was not present. In the absence of solicitors, the parties signed a supplementary agreement, to the effect that if the sale of the Crofton House Hotel was not completed due to a failure on the part of the vendors, the vendors would pay the Woods brothers the sum of £25,000. This agreement was duly signed by the Rhattigan brothers and by the Woods brothers. The back of this supplementary agreement referred to purchase of 13 acres of land at Castletown, Celbridge for £170,000 by Janus Securities, a company controlled by the Rhattigan brothers, and the sum of £25,000 related to this purchase. The real purchase price of the Croffon House Hotel was £190,000 plus £25,000 payable in respect of the Castletown lands. In the early summer of 1974, the Woods brothers cleared the Crofton site preparatory to development. Owing to the recession and lack of demand for office blocks, the Woods brothers were not able to complete this transaction. It was argued on behalf of the Woods brothers - (1) That there was no sufficient memorandum in writing to satisfy the Irish Statute of Frauds. McWilliam J. was satisfied that the memorandum did not set out all the material terms of the contract, but he was also satisfied the demolition of the Croffon premises was an unequivocal act of part performance which takes the case out of the Statute of Frauds. (2) That the contract is illegal, as it constitutes an attempt to defraud the Revenue authorities and as constituting a fraud on the shareholders of one company to the advantage of the other company. Undoubtedly both parties were trying to conceal from the Revenue authorities the true nature of the transaction. Although the issue of illegality should have been pleaded, in the circumstances it cannot be ignored. The plaintiff's claim for specific performance of the cont ract is ac cord i ng ly dismissed. Starling Securities Ltd. v. Francis and Thomas Woods and Investment Holdings International Ltd. — McWilliam J. — unreported — 24 May, 1977.

AUCTIONEER - COMMISSION Plaintiff auctioneer's claim for commission dismissed as defendant's premises were not sold by auction. The plaintiffs, a well-known firm of auctioneers, claim from the defendants £2,560, being 2|% on £106,000 which defendant vendors received on a sale of licensed premises in Ballyfermot on 11 September, 1975. The first defendant and his deceased brother, whose widow the second defendant is, had been co-owners of these licensed premises in the proportion of six tenths, and four tenths respectively. The widow, on account of death duties, was willing to sell her husband's share to the first defendant, but their respective solicitors and accountants could not agree on terms. While in nego- tiation, the defendants agreed to put the property up for public auction by the plaintiffs. On 1 May, 1975, plaintiffs wrote to the first defendant about the proposed auction of the premises and mentioned that their fees were 2|% of purchase price. No other terms were agreed. Between 9 and 19 May, 1975, the plaintiffs published seven newspaper notices advertising the auction for the 28th May, but instructions were given on 21 st May, to cancel the auction. No auction was subsequently held, but the property was ultimately sold privately to a Mr. Regan on 11 September, 1975. Mr. Regan gave evidence that the first time he did anything about purchas- ing the property was when he saw the advertisement post- poning the auction. In June, there were negotiations between the auctioneers and the defendants for a possible sale for £105,000. At the meeting in June, there were conflicting versions of the events that had taken place. But the plaintiffs do not found their claim upon the June meeting, but on the terms of the letter of 1 May. The plaintiffs maintain that their services were engaged by the defendants for the purpose of finding a purchaser, and that the mode of sale was of no significance. However the plaintiffs were expressly employed in terms stated by themselves to sell the property by public auction on a specified date at a specified place. The plaintiffs were employed to use 12