Howlin v Power deposit High Court case

biko

Was going to put this in Accommodation & Property but I'm wondering whether a certain court case exists. Hope that is in line with charter. If not please lock or whatever.

My friend F went to see a house for rent, shown by a person from Agency A. She liked it and gave agency A a holding deposit of €300.
She was told by agency A this holding deposit was non-refundable.
A receipt for the 300 was given to her but she didn't sign any lease or anything.

The day after the landlord rang her as she had some questions. Apparently the agency only handled the showings of the house and then left everything to the landlord.
When she informed the landlord she planned to have a cat there he said there was a no pets allowed policy in the house.
This was not in the advert, and still isn't, but that's besides the point.

She asked agency A for her deposit back and they said they would look into it. After a week now they still haven't got back to her and she now feels they'll just string her along.

Helping her out I was googling around and come upon someone on daft that claims there is a court case that means that you can get your non-refundable deposit as long as a lease wasn't signed.

You are entitled to your deposit back if you have not signed a lease. That was decided in this high court case.
PHILIP M. HOWLIN .v. THOMAS F. POWER (DUBLIN) LIMITED
Judgment McWilliam J. delivered the 5th May.1978
Threaten to object to the auctioneers licence and go to the small claims court if you have any trouble.

As I see it - a holding deposit will be deducted from the first rent. As she never took/was refused possession of the house she never paid any rent. Therefore the deposit must be given back (I'm no lawyer though..)

Does this High Court case actually exist?
Does it pertain to F's situation?

bath handle

The case does exist and is highly relevant.

biko

That's good news thanks. Can you point out a case where this case have been invoked?
And how is it relevant? I've found a text about this case on lawreform.ie but that relates to gazumping.

FreudianSlippers

Hope this helps

Judgment McWilliam J. delivered the 5th May.1978

The Plaintiff's claim is for specific performance of an oral agreement for the surrender of a lease of premises at 328, North Circular Road, Dublin, by the Defendant to the Plaintiff for the sum of £4,000.00

At some time prior to 25th August, 1975, the. Plaintiff purchased the entire premises comprising No. 328, North Circular Road, from the Defendant. The Plaintiff is a chartered accountant and had audited the Defendant's books for a number of years previously and probably had his offices in the premises during this period. On 25th August, 1975, the Plaintiff demised the shop and yard portion of the premises to the Defendant for a term of 21 years from that day at the yearly rent of £1,000.00 subject to periodic reviews as therein provided.

The Defendant is a family company of whom the shareholders were a Mr James Power, his wife, Mrs. Doris Power, and his son, Mr. Dermot Power. Mr. James Power appears to have been effectively in control of the business although another son, Mr. Brian Power, assisted in the management. The business is a wallpaper and hardware business and was carried on both in these premises and in premises at Talbot Street.
In 1976 the company was experiencing financial difficulties and the premises at North Circular Road were advertised for sale. The Plaintiff was regularly consulted by Mr. James Power with regard to various matters connected with the business and was made aware that valuations of £3,000.00 and £3,500.00 had been obtained for the Defendants interest in the premises. It is not clear whether offers of either of these sums were obtained or not. At all events, after some discussion, the Plaintiff agreed with Mr. James Power to buy the Power interest in the premises for the sum of £4,000.00 if he could get a loan from the bank. It appears from a letter of 16th December, 1976, from the Plaintiff to Mr. James Power that the bank would only advance the sum of £3,500.00 and, by this letter, the Plaintiff offered to pay a sum of £3,750.00 cash and forego fees due to him of £300.00. A further letter of 29th December, 1976, from the Plaintiff confirmed an agreement at a meeting on 23rd December, 1976, at which Mr. Power accepted this offer. A cheque for £200.00 was enclosed and the Plaintiff also confirmed that vacant possession would be accepted on 31st January, 1977. Mr. Power, who appears to have suffered from ill health for some time, died on 1st January, 1977, and the Plaintiff wrote a letter of sympathy to Mrs. Doris Power on 4th January, 1977. This letter was acknowledged by Mrs. Power by an undated letter which concluded as follows:- "I will call to see you re. Jim's arrangement"
31st January, 1977, was a Monday and, on the previous Saturday, Mr. Brian Power called with the Plaintiff, offered to pay back the £200.00 and said he was not going through with the transaction. The Plaintiff refused to accept the money or to abandon the contract and a cheque for £200.00 was sent to him on 4th February, 1977, which was not accepted. The Defendant has remained in occupation of the premises.

Evidence was tendered to establish that Mr. James Power intended to terminate his business at the premises at the end of January, and took the necessary steps with regard to the redundancy of his employees and I am satisfied that there was an oral agreement on the terms alleged by the Plaintiff Indeed, this is not seriously disputed.
The claim for specific performance, is defended on the grounds that there was no memorandum in writing of the agreement signed on behalf of the Defendant and that there was no authority on the part of the members of the Power family involved to enter into the contract or sign a note or memorandum of it on behalf of the Defendant.

On behalf of the Plaintiff it is submitted that the letter from Mrs. Doris Power, by its reference to "Jim's arrangement" is sufficient to incorporate the letters of 16th and 29th December, 1976, so as to form a memorandum, and that an engagement by the Plaintiff to make a letting of the premises to a building society or the payment of the sum of £200.00 in part payment of the purchase price constituted a sufficient act of part performance to take the case out of the statute.

With regard to the sufficiency of the note or memorandum, I have been referred to the case of Burgess . v. Cox (1950) 2 All E.R. 1212 as supporting the proposition that Mrs. Power's undated note can be read in conjunction with the Plaintiff's letter so as to form a sufficient memorandum. That case was very different from the present and the principle applied in it was that, if two documents are placed side by side and no parol evidence is necessary to connect one with the other and they clearly relate to the same transaction on the face of the two of them when so placed, they may be incorporated so as to form a sufficient memorandum. That is not the position in the present case. There is nothing whatsoever in the letter from Mrs. Power to indicate the nature of the arrangement to which she was referring or to indicate that she had ever seen or been aware of the letters from the Plaintiff. Accordingly, I hold that there was not any sufficient note or memorandum signed by or on behalf of the Defendant.

The Plaintiff then relies on acts of part performance as taking the case out of the statute. To take the first of these The Plaintiff has given evidence that he made an arrangement with an agent to let the premises to a building society with vacant possession of 1st February, 1977, at the yearly rent of £2,500.00 and rates. It does not appear that there was any contract in writing with the building society and, in cross-examination, the Plaintiff stated that he had had negotiations about letting in December, towards the end of that month, and that he wrote to the estate agent that he would have vacant possession on 31st January. On this aspect of part performance I have been referred to the following cases:-
Lowry . v. Reid (1927) N.I. 142

Brough . v. Nettleton (1921) 2 Ch. 25

Broughton v. Snook (1938) 1 Ch. 505

Daniels . v. Trefusis (1914) 1 Ch. 788

Estate of Earl of Longford 5 L.R.I. 99.

I have also read the case of Crowley . v. Sullivan (1900) 2 I.R. 478 cited in the case of Lowry . v. Reid . In each of these cases the Plaintiff had taken some conclusive or irrevocable or prejudicial step in pursuance of the contract, such as conveying land to a third party, entering into occupation of premises agreed to be let or sold to him, ejecting tenants at the request of the other party or commencing to carry on a business in partnership in pursuance or an agreement to do so. The principle established by these and other cases appears to be that, where the party seeking relief in proceedings has taken some step in pursuant of the contract which has left him in such a position that it would amount to a fraud or be inequitable on the part of the other party to rely on the fact that there was no sufficient memorandum of the contract, the case is taken out of the statute and the Court will enforce the contract. With regard to negotiating a tenancy in the present case, the Plaintiff does not appear to have prejudiced himself in any way by reason of the contract with the Defendant or left himself in a position where he could be required to perform any act which he was not able to do. He merely appears to have consulted or instructed estate agents with regard to negotiating a letting and to have discussed terms with them and with a possible tenant but without entering into any binding contract. Accordingly, apart from causing him disappointment at the loss of his bargain, I cannot see that there is, on these facts, any special equity to take the case out of the statute.
With regard to the payment and acceptance of the sum of £200.00 as part of the purchase price I have been referred to the cases ofSteadman . v. Steadman (1976) A.C. 536 and Re. Gonin ,deceased, (1977) 2 All E.R. 720. It is urged, on the authority of the former case, that, if the payment of the money is referable only to the contract alleged, it is a sufficient act of part performance. Until this case was brought to my attention, I had accepted the proposition that the mere payment of money could not constitute a sufficient act of part performance. Four of the five judges in the House of Lords and two of the three judges in the Court of Appeal refused, in Steadman's case, to accept that this proposition was well founded and, in the unusual circumstances of that case, held that the payment of £100.00 by a husband to his wife was a sufficient act of part performance of a contract containing four provisions for the compromise of matrimonial proceedings. I cannot disagree with the reasoning of the majority of the judges in that case but, accepting that the decision is correct on the question of the mere payment of money constituting an act of part performance sufficient to take the case out of the statute, I must keep before my mind that the statute does provide that a contract for the sale of land shall not be enforceable unless there is a sufficient note or memorandum thereof in writing and that the application of the doctrine of part performance is still confined to cases in which it would be fraudulent or inequitable for a defendant to rely on the statute because a plaintiff has prejudiced himself in some way by reason of the contract. As I have stated, this is not shown to have occurred in the present case and the following passage from the judgment of Lord Reid in Steadman's case at page 541 appears to me to be relevant. It is as follows:-

"Normally the consideration for the purchase of land is a sum of money and there are statements that a sum of money can never be treated as part performance. Such statements would be reasonable if the person pleading the statute tendered repayment of any part of the price which he had received and was thus able to make restitutio in integrum. That would remove any "fraud" or any equity on which the purchaser could properly rely. But to make a general rule that payment of money can never be part performance would seem to me to defeat the whole purpose of the doctrine and I do not think that we are compelled to do that". Here, not only was the sum of money paid comparatively small, but it was actually tendered in repayment to the Plaintiff. Accordingly, I do not accept that this payment was sufficient to take the case out of the statute.

The proposition that Mr. and Mrs. Power did not have a authority to enter into the contract on behalf of the Defendant was not elaborated and is not now relevant, but I should state that it would be repugnant to me to hold, in the absence of compelling authority, that the heads of a family who were principal shareholders in and managers of their family company had not authority to enter into contracts on behalf of their company.

Under these circumstances, the Plaintiff's claim will be I dismissed.

To my knowledge this is still the relevant case law in this matter. Please find attached PDF of the above.

biko

Thanks but I'm afraid I'll need it dumbed down for me.
What part of the text pertains to return of a deposit if a lease has not been signed?

biko

Just an update on this.
Friend F rang agency A and asked if she could get an update on the deposit situation.
The agency then said they would give her 200 back. She wasn't happy with this (and knowing about this case but didn't mention anything about it to the agency) and said she would "take it further".
10 mins later the agency rings again and says they'll give her the whole 300 back.
So there's hope people

Kosseegan

biko wrote: »

Thanks but I'm afraid I'll need it dumbed down for me.
What part of the text pertains to return of a deposit if a lease has not been signed?

The part about the "sufficient note or memorandum".

FreudianSlippers

biko wrote: »

Thanks but I'm afraid I'll need it dumbed down for me.
What part of the text pertains to return of a deposit if a lease has not been signed?

biko wrote: »

Just an update on this.
Friend F rang agency A and asked if she could get an update on the deposit situation.
The agency then said they would give her 200 back. She wasn't happy with this (and knowing about this case but didn't mention anything about it to the agency) and said she would "take it further".
10 mins later the agency rings again and says they'll give her the whole 300 back.
So there's hope people

Sorry I missed this biko, wasn't trying to ignore you... but glad it worked out in the end!

biko

Thanks. She hasn't got the cheque yet so anything can happen but it should be sorted.