Hayden n v Davis and Others

• Jurisdiction: Ireland
• Judgment Date: 26 November 1930
• Date: 26 November 1930
• Court: Supreme Court (Irish Free State)

Halligan v. Davis and Others

NICHOLAS HALLIGAN

Plaintiff

and

JAMES DAVIS, JAMES A. MAY, and ROBERT MURDOCK, Defendants (1)

Supreme Court.

Agreement - Construction - Licence to golf club to play over links - Power to apply for Excise licence in certain events - Meaning of "transfer of the licence" in indenture - Proposed extinguishment of existing licence and grant of licence for new hotel premises - Whether a "transfer" - Hypothetical states of fact - Declaratory judgments.

The defendants were trustees of a golf club, and the plaintiff was the landlord of the premises over which the links extended, and was also the owner of licensed premises, close to the links, and known as "The 19th."The agreement between the plaintiff and the defendants, by which a licence to play over the lands and to erect a club-house was granted, contained stipulations dealing with the provision by the golf club of intoxicating liquors. The trustees covenanted that they would not permit intoxicating liquors to be sold on the lands, or in any structure thereon, without the consent in writing of the plaintiff, provided that, if the club should, at any time thereafter, be duly authorised by law to carry on such sale as a duly licensed club, then the club might sell intoxicating liquors in accordance with such licence on payment of an additional rent. The conditions under which the members of the club might apply for a licence were the subject of a special stipulation, by which the plaintiff agreed that, should the licensed premises known as "The 19th" be closed for any reason whatsoever, or the licence thereof be abolished by legislation or otherwise, and the members of the club should decide to apply for liberty to sell intoxicating liquors as a duly licensed club, then the plaintiff would do all necessary acts and sign such documents as might be necessary to facilitate such application, and would assist the club in making such application. It was thereby also provided and declared that any temporary closing of"The 19th" for the purpose of allowing the owner's assistants to obtain meals, or by reason of any legislation, or as the result of disputes between the plaintiff and his employees, or for any cause whatsoever of a like nature, or by reason of the act of God, enemies of Saorstát Éireann éireann, or the transfer of the licence of the said premises to other premises nearer the links, should not be deemed a closing of the premises such as would entitle the club to apply for a licence under the provisions of the clause.

The plaintiff built a hotel nearer to the links than "The 19th," applied for a licence for it, and, in view of possible objection to the grant of a licence on the ground of the number of existing licensed premises in the locality, was willing to allow the licence of "The 19th" to lapse. The trustees of the golf club were not prepared to say definitely whether they intended, in the event of the plaintiff obtaining a licence for the hotel, to apply for a licence for the club premises or not, and the plaintiff issued a summary summons, naming the trustees as defendants, in which he claimed a determination of the question whether the grant to the plaintiff of a seven days' ordinary licence for his new hotel premises, in consideration of his agreeing to the extinguishment of the existing licence attached to the premises known as "The 19th," would be a transfer of the licence of the premises known as "The 19th" to the new hotel premises within the meaning of the clause above referred to. Johnston J. answered this question in the affirmative, and the defendants appealed to the Supreme Court.

Held, reversing Johnston J., that, although it was not the practice of the Courts to give advisory opinions or to determine the law arising upon hypothetical states of fact, yet, as the question had been answered, the

Court was of opinion that it should deal with the substance of the matter raised; that the parties, when they spoke of the transfer of an existing licence to other premises, meant a licence subject to such conditions as applied to the existing license; that, if it was not possible to have a transfer of the existing licence, i.e., to obtain, in new premises, a licence subject to the same conditions as that which existed, the plaintiff lost the protection which the clause gave him if he left the premises in whish he enjoyed the existing licence; that the plaintiff was not under an obligation to surrender the licence at "The 19th"; and that, if he voluntarily did so for the purpose of obtaining a licence for his hotel, he could not contend that a licence of premises without a public bar was a transfer of the existing licence of premises with a public bar.

Application on behalf of some of the defendants for an order that the judgment and order of Johnston J., dated 21st June, 1929, he reversed; that, in lieu thereof, it be declared that the questions...