Roberts v O'Neill

• Jurisdiction: Ireland
• Judge: Justice McWilliam
• Judgment Date: 03 July 1981
• Neutral Citation: 1981 WJSC-HC 2051
• Court: High Court
• Docket Number: 1451P /1978
• Date: 03 July 1981

1981 WJSC-HC 2051

THE HIGH COURT

1451P /1978

ROBERTS v. O'NEILL AND O'NEILL

GRIFFITH J. ROBERTS

.v.

MICHAEL F. O'NEILL and EILEEN E. O'NEILL

Justice McWilliam

delivered on the 3rd day of July 1981

1 These proceedings have been brought for specific performance of a contract in writing dated 17th January, 1978, expressed to have been made between the Defendants as vendors and the Plaintiff as purchaser, for the sale of licensed premises known as the Silver Tassie for the sum of £200,000, the contract being signed on behalf of the Defendants by Gerard Black & Co., Solicitors.

2 These proceedings were commenced by plenary summons issued on 20th March, 1978. A Statement of claim was delivered on 7th June, 1978, and a defence and counterclaim were delivered on behalf of the Defendants on 19th July, 1978. By this defence the Defendants alleged that it was an express or implied term of the contract that the contract was conditional upon the claim of a third part (Gerard A. Carthy) to enforce an earlier contract being unsuccessful and that they were prevented from completing the contract with the Plaintiff because proceedings had been issued against them by Gerard A. Carthy and stated that, in the event of those proceedings being determined in their favour, they were ready and willing to complete the sale to the Plaintiff, Although this defence alleged that the other proceedings had been issued against both defendants it appears that they were, in fact, issued against the first-named Defendant (hereinafter called Mr. O'Neill) alone and that the second-named Defendant (hereinafter called Mrs O'Neill) was only added as a defendant in those proceedings by the judge at the conclusion of the evidence. That case went on appeal to the Supreme Court and judgment was given in favour of the Defendants on 30th January, 1981. The present proceedings remained in abeyance until after that judgment but came on for hearing on 29th April when application was made on behalf of Mrs O'Neill, who had served notice of change of solicitor on the previous day, for an adjournment and for liberty to deliver a separate defence on the grounds that Gerard Black & Co. had not had authority from her to enter into the contract on her behalf. Application was also made on behalf of Mr. O'Neill for liberty to amend his defence by adding a plea that, owing to the very great increase in the value of the premises since the date of the contract, it would be unjust to oblige the Defendants to complete the sale at the contract price. I allowed both applications and Mrs. O'Neill has entered a defence denying that she entered into the contract and denying that Gerard Black had authority to enter into the contract on her behalf.

3 The Defendants were joint owners of the property. It has not been suggested that Mr. O'Neill did not agree to sell or authorise Messrs. Gerard Black & Co., to act on his behalf. In so far as the validity of the contract is concerned the case depends on the authority given by Mrs. O'Neill to Gerard Black & Co. This is a question of fact about which there is a conflict of evidence, I have been referred, on behalf of Mrs. O'Neill, to a number of questions put to Mr. Gerard Black appearing on the transcript of evidence in the case brought by Gerard A. Carthy from which it appears that Mr, Black was mainly in communication with Mr. O'Neill with regard to the sale to the Plaintiff. This may be so but, although Mrs. O'Neill did not give any evidence in that case, her evidence in this case is quite clear that she was prepared and agreed to sell to Gerard A. Carthy for £190,000 and supported that sale although she says she did not want to sell at all and desired to retain the business, amongst other reasons, so that her son could later take over. Although this was her attitude to that sale, she says she told Mr. Black that, if her husband was anxious to sell, it would be more than her marriage would be worth not to sell, it is clear that she was agreeing that the premises would be sold. The case is thus being made that she was agreeing to sell to Gerard A. McCarthy for...