H v S

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 10 July 1979
• Neutral Citation: 1978 WJSC-HC 2677
• Docket Number: 312 Sp./1978
• Court: High Court
• Date: 10 July 1979

H. v. S.

H. & L.

.v.

S.

1978 WJSC-HC 2677

312 Sp./1978

THE HIGH COURT

1 Judgment of Mr. Justice McWilliam delivered the 10th day of July 1979

2 The Plaintiffs purchased from S. (hereinafter called the Husband) a dwellinghouse which had originally been held by him as a weekly tenant under an agreement in writing dated 6th June, 1968. The Husband had been married to the Defendant on 25th October, 1965. They first resided in England but, after some time, returned to Ireland, and, immediately after that the execution of the agreement of 1968, went into occupation of the dwelling and continued to reside there with their two children until May, 1973, when the Defendant left the dwelling with the children under circumstances which she alleges involved assaults and mental abuse by her husband and general distress caused by his behaviour. In October, 1973, she went to America with the children and took up residence with her brother and obtained some not very well remunerated employment as a bock-keeper. The Defendant alleges that the Husband had a drink problem, working only intermittently and changing his employment frequently. She states that, between 1970 and 1973, he did not work at all whereas she had regular seasonal work. She alleges that she paid most of the rent during this period although in 1970 the Husband made a considerable amount of money from a musical composition. The Defendant did not give her American address to the Husband but he was able to write to her through members of her family and the two carried on a desultory correspondence up to and including May of this year.

3 The Husband continued to reside in the dwelling and appears to have made inquiries about purchasing it from the landlords at the end of 1977. By letter of 1st January, 1978, the landlords offered to sell it to him for the sum of £6,000 but stated that the offer was subject to review at the end of the year. In the autumn of that year the husband obtained an offer of employment in England and, not wishing to reside any longer in the dwelling and not having funds with which to purchase it, entered into negotiations with the Plaintiffs who agreed to pay him the sum of £9,000 for the dwelling when he had obtained the landlord's interest. This having been arranged, the Husband entered into an agreement dated 23rd October, 1978, with the landlords for the purchase of the landlords' interest for the sum of £6,000 and, on the same day, entered into an agreement with the Plaintiffs for the sale to them of the dwelling for the sum of £9,000. The landlords conveyed the dwelling to the Husband by indenture of 1st November, 1978, and the Husband conveyed the dwelling to the Plaintiffs on the following day.

4 The same firm of solicitors acted for the Husband and the Plaintiffs and they advised the parties that the dwelling was not a family home within the meaning of the Family Home Protection Act, 1976. a statutory declaration prepared by the solicitors and made by the Husband contained the following paragraph:- "The above premises are not a Family Home within the meaning of the Family Home Protection Act, 1976, by virtue of the fact that my Wife has not resided with me at the above premises since May 1973 when she left me taking with her our two children and went to America. She has not contacted me since that time. I had held the premises under Agreement dated the 6th of June 1968 from Associated Properties Limited as a weekly tenant. On or about the 20th day of September 1978, I agreed to purchase the premises from Associated Properties for the sum of £6,000."

5 The Plaintiffs took possession of the dwelling and did repairs and decorations at a cost of approximately £650 and then entered into a contract to re-sell the dwelling for the sum of £12,000 on 2nd March, 1979. On this Sale the purchaser challenged the validity of the opinion of the solicitors for the Purchasers and of the statutory declaration made by the Husband.

6 These proceedings were commenced by the Husband who claimed a declaration that the Plaintiffs are purchasers for full value within the meaning of section 3 of the Act of 1976, or, alternatively, an Order dispensing with the consent of the Defendant to a sale to the Plaintiffs.

7 The Husband died suddenly and unexpectedly on 25th May last and, on the application of the Plaintiffs, I substituted them as Plaintiffs to save the...