Dunne v Hamilton

JudgeMr. Justice Costello,GRIFFIN J,C'HIGGINS C.J.,Henchy J.
Judgment Date09 February 1982
Neutral Citation1982 WJSC-SC 800
Docket Number(1980-129)
CourtSupreme Court
Date09 February 1982







1982 WJSC-SC 800




JUDGMENT delivered the 9th day of February 1982by C'HIGGINS C.J.


By Plenary Summons issued on the 10th November 1975 the first-named Plaintiff (hereinafter referred to as Frank Dunne) commenced an action in the High Court against the first-named Defendant (hereinafter referred to as Major Hamilton). In the said action Frank Dunne sought specific performance of a Contract in writing dated the 25th January 1973 whereby Major Hamilton agreed to sell to him the property known as Hamwood House with 215 acres of land at Dunboyne, Co. Meath, for the sum of £150,000. On the 13th May 1977 an Order for the specific performance ofthis Contract was made and it was thereby ordered that the sale of the house and lands be closed and possession thereof be handed over by Major Hamilton to Frank Dunne on or before the 1st February 1978. Major Hamilton having failed to obey this Order for specific performance a motion was brought in the action seeking appropriate relief. On the 28th July 1978 on the hearing of this motion Major Hamilton gave an undertaking, which was accepted by Frank Dunne, to execute the necessary conveyance and to deliver up possession to the Plaintiff on or before April 1st, 1979. On this basis the motion was adjourned with liberty to re-enter. Major Hamilton having again failed to complete the sale in accordance with the Order of the High Court and in accordance with his undertaking, the matter was again re-entered before the High Court on the 30th July 1979. On that date, it then appearing that the necessary conveyance of the house and lands to Frank Dunne had been executed by Major Hamilton, the Court ordered the closing of the sale to take place at the offices of Fitzpatricks, Solicitors forFrank Dunne, at 2 o'clock on the afternoon of the 4th September 1979. On the 26th July 1979 the second-named Plaintiff (hereinafter referred to as Mrs. Hamilton) commenced on action in the High Court against Frank Dunne and Major Hamilton, seeking a declaration that the conveyance executed by Major Hamilton of Hamwood House (being in fact the property included in the Contract for Sale of the 23rd January 1973) to Frank Dunne was void under the provisions of Section 3 of the Family Home Protection Act 1976. The basis of the claim for this declaration was, that such conveyance had been executed without the prior consent in writing of Mrs. Hamilton, who was the wife, of Major Hamilton, and, that the lack of such consent rendered the conveyance void under the Section. On the 31st October 1979 by Order made by the President of the High Court the proceedings in the specific performance action brought by Frank Dunne against Major Hamilton and the proceedings in the declaratory action brought by Mrs. Hamilton were consolidated and the time for the specific performance of the Contract byMajor Hamilton was extended. The proceedings so consolidated were heard by Mr. Justice Gannon. On the 14th February 1980, in a reserved Judgment, he held that Section 3 of the Family Home Protection Act 1976applied to the conveyance executed by Major Hamilton. He accordingly granted the declaration sought by Mrs. Hamilton and stayed all further proceedings in the specific performance action. Against this Judgment this appeal has been brought by Frank Dunne with whom Majoy Hamilton joins for conformity.


It will be apparent from the foregoing account of this litigation that the primary question which arises for consideration on this appeal is whether Section 3 of the Family Home Protection Act 1976can apply to the conveyance executed by Major Hamilton in July 1979. Other subsidiary questions have also been raised but these only require resolution if this primary question is decided in favour of Mrs. Hamilton. The validity of the Contract for Sale of the 23rd January 1973 has not been challenged and it is accepted that the Conveyance was executed by Major Hamilton, albeit both tardily, andreluctantly, in purported discharge of his obligation under this Contract. It was, however, so executed without the prior consent in writing of Mrs. Hamilton and she contends that it is, on this account, null and void by reason of the provisions of the Section.


At this stage it is necessary to refer to the relevant provisions of the Family Home Protection Act 1976. In its long title the Act is described as

"An Act to provide for the protection of the family home and for related matters".


Section 2 defines the term "family home". Section 3 is the Section which arises from consideration on this appeal. It provides asfollows:


2 "3 (1) Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsection (2) and (3) and Section 4, the purported conveyance shall be void.


(2) Subsection (1) does not apply to a conveyance if it is made by a spouse in pursuance of an enforceable agreement made before the marriage of the spouses.


(3) No conveyance shall be void by reason onlyof subsection (1) û


(a) if it is made to a purchaser for full value


(b) if it is made, by a person other than the spouse making the purported conveyance referred to in subsection (1), to a purchaser for value, or


(c) if its validity depends on the validity of the conveyance in respect of which any of the conditions mentioned in subsection (2) or paragraphs (a) or (b) is satisfied.


(4) If any question arises in any proceedings as to whether a conveyance is valid by reason of subsection ( 2) or (3), the burden approving that validity shall be on the person alleging it.


(5) In subsection (3), "full value" means such value as amounts or approximates to the value of that for which it is given.


(6) In this Section, "purchaser" means a grantee, lessee, assignee, mortgagee, chargeant or other person who in good faith acquires an estate or interest in property.


(7) For the purpose of this Section, Section 3 of the Conveyancing Act, 1882, shall be read as if the words "as such" wherever they appear in paragraph (ii) of subsection (1) of that Section wereomitted."


These being the relevant provisions of the Family Home Protection Act 1976, the first matter which should be noted is that this Act sets out to alter the law. It isnot an Act dealing merely with form or procedure. It is an Act which declares transactions previously regarded in law as binding and valid, to be unenforceable and void, if not carried out in accordance with the provisions of Section 3. It is contended by Mrs. Hamilton that this Section applies to the conveyance executed by her husband, even though it was so executed in pursuance of a Contract entered into by him more than three years before the Act came into operation. She so contends because the conveyance was executed, without her prior consent in writing, after the Act came into operation. If she is correct in this contention, Major Hamilton's conduct in failing earlier to honour his contractual obligations is an irrelevant consideration. By his delay and his failure to act as the law obliged him, he would have brought about a situation which he could never have contemplated and would, as a result of his wife's refusal to give her consent, be now prevented and absolved from honouring a contractual obligation which he had freely and lawfully undertaken. The question, however, is whetherthis act can have been intended to have or is capable of having such aneffect.


This brings me to the subject or retrospectivity and it is necessary to state with some precision what I regard as such in a statute. Many statutes are passed to deal with events which are over and which, necessarily, have a retroactive effect. Examples of such statutes - often described as ex post facto statutes - are to be found in Acts of immunity or pardon. Others statutes having a retroactive effect are statutes dealing with the practice and procedure of the Courts and applying to causes of action arising before the operation of the Act. Such statutes do not and are not intended to impair or affect the vested rights and are not within the type of statute with which, it seems to me, this case is concerned. For the purpose of stating what I mean by retrospectivity, in a statute, I adopt a definition taken from Craieson Statute Law which is, I am satisfied, based on sound authority. It is to the effect that a statute is to be deemed to be retrospective which takes away of in airs anyvested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed (see Craies 5th Ed. 357). It is implicit in the contention put forward on behalf of Mrs. Hamilton that Section 3 of the Family Home Protection Act 1976applies in this case in such a manner as


(a) to impose a new requirement for the completion of a transaction entered into before the Act came into operation,


(b) to remove the existing rights of the parties to that transaction to completion without observing such requirement and


(c) thereby to affect and impair rights which were vested under existing laws.


Put shortly, it is implicit in this contention that this Act was intended to have and has retrospective effect.


Retrospective legislation, since it necessarily affects vested rights, has always been regarded as being prima facie unjust. In the early 17th century coke soughtestablish the principle that the common law could control such acts and adjudge them void as being contrary to "the natural law" or "common right and reason". (see Dr. Bonham's Case 1610 8 Coke Rep.). In this view...

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