Commane v Walsh

CourtHigh Court
JudgeO'Hanlon J.
Judgment Date02 May 1983
Neutral Citation1983 WJSC-HC 2103
Docket NumberNo. 66 Sp/1982
Date02 May 1983



1983 WJSC-HC 2103

No. 66 Sp/1982


Subject Headings:

SALE OF LAND: contract

Judgment of O'Hanlon J. delivered the 2nd May, 1983.

By a Memorandum of Agreement in the standard form for Sale by Private Treaty made available by the Incorporated Law Society of Ireland, the Plaintiff agreed to purchase from the Defendant for the sum of £66,000 three parcels of land situate at Burnchurch, Co. Tipperary, as described in Paragraphs 1, 2 and 3 of the Particulars in the said Agreement.


The acreage of each parcel was given in the descriptive particulars and the three parcels added together comprised approximately 51a.3r. but the final sentence in the section marked "Particulars" read as follows :- "The total acreage being sold under this contract is believed to contain 54.2 acres statute measure or thereabouts."


This obvious discrepancy want unnoticed at the time of the execution of the Agreement and gave rise to some difficulty at a later stage.


The date of the Agreement was the 3rd April, 1981, and the Closing Date was given as the 1st May, 1981. Time was not expressed to be of the essence of the contract in relation to the named date for closing. Clause 28 of the Agreement provided as follows:-

"28. Save where the Special Conditions provide that time shall be of the essence of the Contract in respect of the closing date the following provisions shall apply:-"


(1) If the sale be not completed on or before the closing date, either party may on that date or at any time thereafter (unless the Contract shall first have been rescinded or become void) give to the other party notice in writing to complete the sale in accordance with this condition, but such notice shall be effective only if the party giving it shall then either be able, ready and willing to complete the sale or is not so ready by reason of the default or midconduct of the other party.


(2) Upon service of such notice the party upon whom it has been served shall complete the sale within twenty eight days after the date of such service (excluding the day of service) and in respect of such period time shall be of the essence of the contract (but without prejudice to any intermediate right of rescission by either party).


(3) If the Purchaser does not comply with such notice within the said period (or within any extension thereof which the Vendor may permit) he shall be deemed to have failed to comply with these Conditions in a material respect and the provisions of Clause 29 hereof shall apply accordingly.


(4) If the Vendor does not comply with such an effective notice within the said period (or within any extension thereof which the Purchaser may permit) then the Purchaser may elect either to enforce against the Vendor, without further notice, such rights and remedies as may be available to the Purchaser at law or in equity or (without prejudice to any right of the Purchaser to damages) to give notice in writing to the Vendor forthwith to repay to the Purchaser his deposit and any money paid on account of the purchase price. If the Purchaser serves such a notice and the Vendor makes such payment, the Purchaser shall no longer be entitled to specific performance of the Contract and shall return forthwith all documents in his possession belonging to the Vendor and (at the Vendor's expense) procure the cancellation discharge or release of any entry relating to the Contract in any register.


(5) The party serving a notice under this condition may at the request of or with the consent of the other party extend the term of the notice for one or more specified further periods of time and in that case the term of the notice shall be deemed to expire on the last day of such extended period or periods and the notice shall operate as though such extended period had been specified in this Condition in lieu of twenty eight days and time shall be of the essence in relation to such extended period."


The Vendor was selling in her capacity as personal representative of Patrick Reidy deceased. Two of the parcels of land, comprising in all 48a.Or.25p., were registered on Folio 40033 of the Register, Co. Tipperary, and the third parcel of land comprising 3.234a., was registered on Folio 13155, Co. Tipperary. The Special Conditions stated that, "No requisition or objection shall be raised as to the accuracy of the area in sale and Purchaser shall deem to have inspected the property prior to completion of the Contract."


The Agreement, duly executed by the Purchaser, was returned to the Vendor's solicitors, accompanied by deposit of £16,500, by letter dated the 8th April, 1981, but the copy contract document completed by the Vendor was not sent to the Purchaser's Solicitors until the 5th May, 1981, which was later in time than the official date fixed for the closing of the sale by the terms of the Agreement. In the letter enclosing same, the Vendor's solicitors referred to the fact that Mary Reidy deceased was the registered owner of the lands in Folio 13155, she having died in 1929, and that they were taking steps to have the title rectified with regard to this plot of ground. This evoked a reply from the Purchaser's solicitors, dated 7th May, 1981, enclosing Requisitions on Title, and referring to the delay which was likely to arise in relation to the property registered in Mary Reidy's name. They suggested apportioning the purchase money. They wrote again without receiving a reply, on the 20th May, 1981; 26th May, 1981, and17th June, 1981, although it appears that the solicitors were in communication by telephone at some stage during that period. It is accepted by the Purchaser's solicitors that they did make an offer during the month of May, 1981, to close the sale in relation to the two larger lost registered on Folio 40033 and to leave over until later the closing of the sale in relation to the small parcel comprised in Folio 13155, the purchase money to be apportioned for this purpose and...

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