The Gazette 1977

GAZETTE

APRIL 1977

RECENT IRISH CASES

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

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