The Gazette 1977

ADOPTION Consent

Property Beneficial ownership — Bankrupt the registered owner of 19,000 shares in company — Admission during examination that 7,600 shares belonged to third party — Evidence establishing beneficial ownership of those shares not in bankrupt — (No. 1633 — Hamilton J. - 7/5/76). In re O'Keeffe. CASE STATED District Court Jurisdiction — Extradition — Corresponding offence — Question of mixed fact and law — District Justice having power to state Case — (111/1973 - Supreme Court - 22/7/76). Murphy v. Bayllss. COMPANY Charge Validity — Inaccurate particulars of mortgage delivered to registrar of companies after expiration of statutory time limit — Statute declaring that charge on company's property to be void in that event — Registrar giving certificate of due registration — Statute also stating that such certificate to be conclusive evidence of due registration of charge — Liquidator of company bound by statutory effect of registrar's certificate — Companies Act, 1963, ss. 99, 104 - (1976 No. 37 Sp. - Hamilton J. - 10/12/76). Lombard A Ulster Banking (Ir.) Ltd. v. Amurec Ltd. (in Liquidation). Mortgage Fraudulent preference — Whether company's intention was to prefer mortgagee to other creditors — Intention not established —Mortgage registered within one month of liquidation - (1976 No. 118 Sp. - McWilliam J. - 8/9/76). Corran Construction Ltd. v. Bank of Ireland Finance Ltd. Winding up Constitution — Articles and memorandum — Assets for distribution are not profits — Whether company precluded by its constitution from distributing profits among its members - (1974 No. 28 - Kenny J. - 22/1/76). Wilson v. Dunnes Stores (Cork) Ltd. Winding up Secured creditor — Bank loan to company on strength of existing contract by company to sell its lands and business as a going concern — Company undertaking to repay loan out of purchase price —Subsequent order winding up company — Whether bank having equitable charge on purchase money — Whether bank having a charge on book debt requiring registration under Companies Act, 1963 - ( 1 9 7 4 No. 175 IP — McWilliam J. — 1/6 and 21/7/76). In re Kum Tong Restaurant (Dublin) Ltd. Assessment — Value of land at date of notice to treat — Two notices to treat — First notice served before compulsory purchase order became operative —Arbitrator appointed on application of acquiring authority — Statutory power of authority to serve notice after order became operative — Whether landowner had altered his position as a result of service at first notice — Whether authority had adopted first notice by appointment of arbitrator —Value of land at date of second notice proper basis for assessment — Service COMPULSORY ACQUISITION Compensation

of first notice ultra vires acquiring authority - No estoppel in face of statute —Housing Act, 1966 s. 79 - (1976 No. 143 SS - McMahon J. - 24/6/76). Greendale Building Co. v. Dublin County Council.

Validity — Power to make Adoption Order dependent upon consent of child's mother — Adoption Board having statutory obligation to satisfy itself that mother understands the nature and effect of her consent —Consent revocable until Adoption Order is made — Mother not informed that consent revocable and not given notice of meeting of Board at which Adoption Order made — Marriage of mother and father of child after Adoption Order was made by Board — Whether statutory requirements obligatory or directory — Adoption order declared a nullity - Adoption Act, 1952, ss. 14 (6), 15 (3) - 164/74 - Supreme Court - 2/6/76. M. v. An Bord Uchtála. AFFILIATION Procedure High Court jurisdiction — Jurisdiction apparently dependent upon appropriate rules of court — Rules not made — Jurisdiction not excluded — Application of existing High Court rules to create procedure similar to procedure prescribed in statute —Claim for maintenance in excess of District Court jurisdiction — (212/75 — Supreme Court - Knowledge — Agent's knowledge imputed to principal normally — Otherwise where agent involved in fraud or misfeasance against his principal — (97/75 — Supreme Court — 18/3/76). United Dominions Trust (It.) Ltd. v. Shannon Car Hire Vans Ltd. ARBITRATION Reference Contract — Sale of land — Purchase by tenant of landlord's interest — Purchase price not ascertained —Provision that price to be the number of years purchase of rent that would be fixed under Landlord & Tenant (Ground Rents) Acts, 1967, if rent reserved were a ground rent within meaning of that Act — Price of ground rent under Act of 1967 ascertained by county registrar — Registrar declining to perform function sought to be imposed on him by tenant — No agreement between parties to refer differences to arbitrator — Contract not specifying person to fix price — No arbitration agreement within meaning of s. 2 of Arbitration Act, 1954 - No power in court to appoint arbitrator — (1973 No. 236IP - Hamilton J. - 18/6/76). Carr v. Phelan. 29/7/76). O. v. W. AGENCY Principal

CONSTITUTION Legislation

Reference of Bill to Supreme Court — Bill expressed to be for purpose of securing public safety and the preservation of the State — Time of armed conflict in which State not a participant — Resolutions of Houses of Oireachtas as to existence of national emergency — Constitution of Ireland, Articles 26, 28. 3(3) - (Supreme Court - 15/10/76). Emergency Powers Bill, 1976. Legislation Reference of Bill to Supreme Court — Presumption of constitutionality — Extra- territorial effect of enactment — Special Cryninal Court — Evidence on commission — Right of representation includes right to cross-examine —Admissibility of evidence — Accused entitled to statement of evidence (Supreme Court - 6/5/76). In re Criminal Law (Jurisdiction) Bill, 1975. Personal rights Bodily integrity — Prisoner's state of mind disturbed — Self-inflicted injuries — Stringent conditions of detention — Right not infringed - (1975 No. 140 SS. - Finlay P. - 13/4/76). The State (Crawley) v. Governor of Mountfoy Prison. Personal rights Liberty — Detention of suspect beyond period allowed — Detention prolonged to enable suspect to complete statement — Detention unlawful - (5-8/76 - C.C.A. - 16/11/76). The People (D.P.P.) v. Madden A Ors. Prison Governor Prison discipline — Breach of discipline by prisoner serving sentence — Punishment imposed by Prison Governor in accordance with regulations — Governor exercising limited function and power of a judical nature in a matter other than a criminal matter — Punishment not unconstitutional — Constitution of Ireland, Article 37 - (1975 No. 613 SS - High Court - 21/1/76). The State (Murray) v. Governor of Limerick Validity - Delegated legislation - Statutory instrument — Price control — Sale of intoxicating liquor — Whether principles of natural justice applicable to exercise of legislative power — Point not decided as instrument not made arbitrarily or capriciously (1974 No. 1146P - McMahon J. - 28/6/76). Cassidy v. Minister for Industry and Commerce. Statute Validity —Delegated legislation —Power of statutory body to select class of employers and to impose levy on each employer in that class — Levy to be used for training apprentices —Statutory instrument enabling body to impose levy based on an estimate in event of employer failing to make required returns — Whether instrument ultra vires the statute conferring the power — Industrial Training Levy (Printing and Paper Industry) Prison. Statute

AUCTION Reserve

Unlawful use of puffer — Reserve withdrawn - (1974 No. 983P. - Hamilton J. - 27/1/76). Early v. Fallon.

BANKRUPTCY Mortgage

Fraudulent preference — Whether company's intention was to prefer mortgagee to other creditors — Intention not established - Mortgage registered within one month of liquidation - (1976 No. 118 Sp. - McWilliam J. - 8/9/76). Corran Construction Ltd. v. Bank of Ireland Finance Ltd. 2