The Gazette 1977

stipulating that date fixed by contract for completion to be of essence of contract — Normally such term implied by law in contracts for sale of such premises — Existence of express term relating to interest on purchase money after completion date and conduct of parties excluding implication of such term — Consequently term implied by law that sale (if not completed on or before) should be completed within reasonable period after completion date — Deliberate delay by purchaser who tried to provide purchase money by sale of other property in order to avoid necessity of obtaining bridging loan otherwise required to enable him to complete — Vendor not informed of reason for purchaser's delay — No conveyancing or title difficulties — After expiration of 3 months demand by vendor that purchaser complete within 14 days —Failure of purchaser to so complete — Rescission (and return of deposit) by vendor — Plaintiff purchaser's claim for specific performance — Judgment for defendant — Purchaser in breach of implied term to complete within reasonable period after completion date — (Circuit Appeal — Finlay P. - 31/5/76). O'Brien v. Seaview Enterprises Ltd. Contract Formation — Agreement "subject to contract" — Facts supporting inference that parties had concluded a contract to buy and sell property —Phrase used to indicate that provisions of existing agreement should be recorded in formal written document — Execution of formal contract by vendor not a condition precedent to his liability — (1976 No. 377P - McWilliam J. - 3/11/76). O'Fiaherty v. Arvan Properties Ltd. Contract Formation — Knowledge of terms —Foreign purchaser unable to speak English — No independent advice — Contract prepared and deposit taken by helpful estate agent — Express term that deposit ( | of £72,500) to be forfeited in event of purchaser failing to complete — Purchaser signing memorandum of contract — Purchaser having no knowledge of express term or nature of a deposit — Purchaser failing to complete — Plaintiff purchaser recovering deposit with accrued interest - (1975 No. 748P - Finlay P. - 1/6/76). Siebel v. Kent. Contract Recission — Licensed premises — Defendant vendor misrepresenting amount of current turnover of business —Misrepresentation an inducement to contract — Plaintiff entitled to rescind — Sale also invalidated by unlawful use of puffer at auction contrary to Sale of Land by Auction Act, 1867 - (1974 No. 983P - Hamilton J. - 27/1/76). Early v. Fallon. Contract Specific performance — Damages in addition — Breach by defendant of contract to build house for plaintiff — Plaintiff's action compromised — Compromise including sale of defective house by plaintiff to defendant — Failure of defendant to implement compromise —Specific performance ordered — Damages awarded to plaintiff for loss of bargain in purchase of other property because of defendant's failure to pay purchase price — Damages awarded for discomfort and inconvenience suffered by plaintiff — (1975 No. 4344P - McWilliam J. - 22/6/76). Murphy v. Quality Homes. 7

house as distinct from market value of destroyed house - (1975 No. 3504P - Finlay P. - 30/7/76). Munnelly v. Calcon Ltd. Trespass Building erected — Trespasser acting in belief that building site belonged to him —Owner having no knowledge until building completed in eighth year of ownership — Lack of attention by owner to his property and failure to fence plot from surrounding land — Trespasser having means of knowledge that he was trespassing — Uqjust enrichment — Ejectment — Order made for possession with stay to enable defendant to pay value of site and damages - Stay to be perpetual if payment made - (1974 No. 2597P - Finlay P. - 28/7/76). McMahon v. Kerry Co. Council. REVENUE Company Constitution — Distribution of profits — Company not liable for Corporation Profits Tax if a "corporate body which by its constitution is precluded from distributing any profits among its members" — Company so precluded by its articles of association — Revenue claim that provisions in company's Articles relating to the winding up of die company allowed a distribution of profits to its members — Both claims rejected — Finance Act, 1932, s. 47 - (1974 No. 28 - Kenny J. 22/1/76). Wilson v. Dunnes Stores (Cork) Ltd. Income Tax Forestry — Allowable expenses — Cost of purchasing and planting young trees to replace old woodland being a revenue expense and allowable — Cost of preparing waste land for planting being a capital expense — Cost of purchasing and planting young trees on reclaimed waste land being a capital expense — Income Tax Act, 1918, Sch. B, rr. 5 & 7 - (38/1976 - Supreme Court - 20/12/76). Wilson-Wright v. Connolly. Income Tax Occupier of land — Schedule B —Whether taxpayer had the use of land — Taxpayer cultivating, cutting and removing grass from military aerodrome under licence of Minister in whom aerodrome was vested —Whether Act contemplated two users of same land — Taxpayer not the dominant user and not assessable under Schedule B — Income Tax Act, 1967, s. 18 - (13/1975 - Supreme Court - 20/12/76). O'Conail v. George Shackleton A Sons Ltd. Failure —Defendant seller not the owner of goods — Property not vested in plaintiff buyer —Buyer claiming recovery of price of goods — Quasi contract — Seller handing over price to owner of goods who became hirer under sham hire-purchase agreement with buyer as a device for obtaining a loan — Plaintiff having no knowledge of true facts - Agency — Agent's knowledge of fraud or misfeasance against his principal not imputed to principal — (97/1975 - Supreme Court - 19/3/76). United Dominions Trust (Ir.) Ltd. v. Shannon Care Hire Vans Ltd. SALE OF LAND Contract Breach - Discharge —Recission — Sale of licensed premises with intoxicating liquor licence as going concern —No express term SALE OF GOODS Consideration

Attachment Contempt of Court — Civil contempt — Jury not required for trial of issue — The State (Commins) v. Fawsitt approved - (59/1976 - Supreme Court - 14/10/76). The State (Heany) v. Central Mental Hospital. Attachment Contempt of Court — civil contempt — Whether issue may be tried without a jury — Order of the Court in a civil action disobeyed by one of the parties —Verdict of jury not required ( McEnroe v. Leonard 9/12/75 not applied) — Sentence may be of indefinite duration — Constitution of Ireland, Article 38, s. 5 - (1976 Nos. 64 & 65 SS. - Finlay P. - 19/3/76). The State (Commins) v. Fawsitt. Attachment Contempt of Court —Criminal contempt — Bias imputed to judges of Special Criminal Court —False representation about evidence tendered against accused at criminal trial — Conditional order of attachment against editor of publication —Conditional order of sequestration against body corporate which published the contempt - (121/1976 - Supreme Court - 14/7/76). The State (D.P.P.) v. Hibernia National Review Ltd. Costs Taxation - Counsel's fees - Principles stated by Gannon J. in Dunne v. O'Neill (1974 I.R. 180) applied (1972 No. 1470P - Parke J. - 12/3/76). Irish Trust Bank Ltd. v. Central Bank of Ireland. Procedure Affiliation — High Court jurisdiction — Jurisdiction apparently dependent upon existence of appropriate rules of court — Rules not made — Jurisdiction not excluded — Application of existing High Court rules to create procedure similar to procedure prescribed by statute — Claim for maintenance in excess of District Court jurisdiction - (212/75 - Supreme Court - 29/7/76). O. v. W. Time Limit Extension — See Landlord and Tenant. Enforcement — Whether a criminal matter - Limited function of a judicial nature — C o n s t i t u t i on — P u n i s hme nt not unconstitutional - (1975 No. 613 SS. - High Court - 21/1/76). The State (Murray) v. Governor of Limerick Prison. RATES Hereditament Valuation - Increase in value — Statutory exclusion from liability to rates arising from consequential increase in value of hereditament due to specified works - Valuation (Ir.) Act, 1852, s. 14 - (Gannon J. - 21/12/76). Nixon r. Commissioner of Valuation. PRISON Discipline

REAL PROPERTY Easement

Support Terrace of houses — Demolition of business premises by negligent removal of support from plaintiffs house during rebuilding of adjoining house - Measure of damages to be the cost of rebuilding plaintiffs