John Kavanagh and Rita Kavanagh (plaintiffs) v Antonio Delicato (defendant).

Sale of Land - Specific performance - Oral agreement for sale of yard attached to business premises and family home - Evidenced in writing by a letter signed by an auctioneer with the authority of the vendor - Whether it was a sufficient note or memorandum to satisfy the Statute of Frauds - Whether Family Home Protection Act 1976 applied to sale - Whether Act may be invoked as defence where non-owning spouse initiated sale - Statute of Frauds (Ireland) 1695 (3 Wm 3, Ir c. 12) - Family Home Protection Act 1976 (No. 27).

The High Court (before Miss Justice Carroll); judgment delivered 20 December 1996.

AN oral agreement, subsequently evidenced in writing by a letter, with map attached, written by an auctioneer acting with the authority of the vendor, is an adequate note or memorandum to satisfy the Statute of Frauds (Ireland) 1695 and binds the vendor. The failure to include in the description of the property a beneficial right of way marked on the site map is not a fatal flaw; a right of way is an appurtenant to the premises and even if not mentioned would go with the conveyance. Neither is the omission of the reservation of rights by the vendor to use sewers, water courses and drains as these are matters appropriate to be left to the formal contract.

The use of a yard to the rear of a business-premises-cum-family home for purposes such as hanging out washing brings it within the ambit of the Family Home Protection Act 1976 as being part of the curtilage of the family home. A sale of such property cannot occur without the consent of, the non-owning spouse. Where the non-owning spouse initiated the sale and concluded it with the agreement of her husband, the statute may not be raised as a defence.

The High Court so held in upholding the plaintiffs' claim for, specific performance of an oral's contract for the sale of a premises.

Christoher Mullane BL for the plaintiffs, Richard Law Nesbitt SC and John McBratney for the defendant.

MISS JUSTICE CARROLL described the background to the proceedings. The defendant owned two adjoining premises both of which had yards at the rear. The first plaintiff, a publican, owned a licensed premises the cold rooms, of which adjoined the yard at the rear of the defendant's property. A right of way exists from the yards at the rear of one of the premises through a gateway across a lane onto the street.

When the defendant became ill, his wife took over the running of the business. She made all the decisions and towards the end of May 1989 she contacted the first plaintiff about the sale of the yard at the rear. The plaintiffs claimed a valid contract for sale was subsequently entered into. The defendant denied the contract and concluded a contract for a higher price with a third party.

Miss Justice Carroll noted there was a mass of conflicting evidence and made the following findings of fact:

On or about 19 or 20 May 1989, the first plaintiff was invited to the premises by the defendant's wife to discuss sale of the two yards at the rear. No offer was made. The defendant's wife subsequently contacted an auctioneer, who had previous knowledge of the premises. On 27 May 1989 the defendant and his wife were told the first plaintiff was the only interested party. The first plaintiff and defendant agreed sale for £30,000, the closing to be as soon as possible. The defendant accepted it was necessary to prepare a map and agreed the person to do it. The auctioneer was told the name of the defendant's solicitor.

On 29 May 1989 a deposit of £3,000 was paid by the first plaintiff. An architect visited the premises and prepared a map outlining in red the area to be sold and identifying windows and doors to be blocked and walls to be built. The map was sent to the auctioneer who attached it to two identical letters which were sent to the solicitors for the plaintiffs and the defendant. The letters confirmed sale for the sum of £30,000, identified the parties to the sale, confirmed a 10 per cent deposit had been paid which the auctioneer was holding as a stakeholder and sought a closing date at the earliest convenience.

Miss Justice Carroll said it was a case of vendors agreeing a sale at a good price with someone they think is the only person interested, only to find that another purchaser who said that he was not interested in fact offered more than the asking price and also offered to buy additional property. They resiled from the bargain and entered into another contract.

The defence was that there was not a sufficient memorandum or note to satisfy the Statute of Frauds. Miss Justice Carroll accepted that the auctioneer's letter of 31 May 1989 with map annexed identified the property, the parties, the purchase price and the closing date to be at the earliest convenience. Relying on Law and Another v Robert Roberts & Co (Ireland) Limited [1964] IR 292 the judge accepted that an auctioneer who is authorised to accept an offer on behalf of an owner has authority to make an open contract with the purchaser.

A further defence was that a fatal flaw existed in the agreement, in that there was no reference to the right of way or reservation of rights by the vendor to use sewers, water courses and drains. The Court rejected this argument holding that the map gave sufficient indication of the right of way. Further, as the right of way is an appurtenant to the premises, Aft would go with the conveyance in any event. The issue of reservation of the other rights was not disputed and was an appropriate matter to leave to the formal contracts to be drawn up by the solicitors: Guardian Builders Ltd v Kelly [1981] ILRM 127.

In the light of those facts as found, the Court held that the auctioneer's letter with map annexed, signed with the authority of the vendor, was an adequate note or memorandum in writing of the contract agreed between the parties.

Miss Justice Carroll accepted that the premises was part of the curtilage of the family home arising from the use of the yard to hang out washing and for family use in the summer. Therefore the provisions of the Family Home Protection Act 1976 applied. The defence of non compliance with the provisions of that Act, on the basis that the defendant's wife did not give her prior written consent to the sale, was argued. The judge, rejecting that argument, said the defendant's wife had been the prime mover in the entire process of sale. Miss Justice Carroll said that statute should not be made an instrument of fraud and she held the defendant was estopped from raising the statute as a defence as his wife, with his consent, arranged the sale. The Court indicated it was an appropriate case to dispense with consent under section 4 of the Act.

The defence of illegality raised was also rejected, as the Court found there was no "under the counter" offer made as had been alleged by the defendant.

The defendants counterclaim was dismissed.

Solicitors: Peter O'Boyle & Co (Dublin) for the plaintiffs; Kenny Stephenson & Chapman (Waterford) for the defendant