The Gazette 1972

201 / 294

advertisement, and that the auctioneer had specifically
stated that the right of way was included in the sale;
this was denied by the plaintiff; who stated that there
was no misrepresentation, as defendant knew laneway
was overgrown, impassable and closed by a gateway.
In the High Court, Tecvan J. gave plaintiff a decree for
specific performance, and dismissed defendant's pleas.
It was held that the right of way was not included in
the contract, bccause the naming of it in the conveyance
and the press advirtisemcnt did not form part of the
contract. It was also held that there were factors—such
as inspection of the laneway. and that he should have
noticed its state—which prevented the claim of misre-
presentation from succeeding.
On appeal, it was contended that the right of way
was the right appurtenant to the land. In 1966, the
auctioneer Adams, described the residence as "ideal
for conversion ". The defendant inspected the premises,
and saw the condition of the lane: later on, after the
auction, he inspected the barred gate. He further
inspected the title deeds, and found the title conveyed
the premises with the right of way. The plaintiff con-
tended that in those circumstances the defendant should
have made a requisition, which he did not. The plaintiff
subsequently approved the draft conveyance which
included the right of way, hut says he did it inadver-
tently. There was subsequently a lengthy correspondence
about the right of way between the parties.
The Supreme Court (Budd, Fitzgerald and McLough-
lin J. J.) per Budd J., held that it would be common sense
if any consequential right of way were included in the
purchase of premises, which is included in the'whole of
vendor's interest, and that there was no doubt as to its
inclusion. Furthermore there was a right of way in the
lane appurtenant to the premises before 1908, when the
conveyance ws made. As the press advertisement men-
tioned a back entrance, it would follow that a back
entrance would be of no use unless it could be freely
used through the lane, which undoubtedly infers a right
of way. There is no evidence of any intention to abandon
the right of way. nor of long disuse. If the right of way
was to be excluded from the sale, it was the duty of the
plaintiff to state so specifically, but he did not do so.
As regards the purchaser's position when a misrepre-
sentation is made, it must bt shown that he had full and
complete knowledge of the truth to take away his right
to rely on the misrepresentation. When the defendant
inspected the overgrown lane, this did not detract from
his legal right to a right of way. There was no ground
for raising this matter in the requisitions. Undoubtedly
the representations contained in the tdvertisement
pointed to a right of way. and the plaintiff had no right
to assume to the contrary. It was clear that the defen-
dant was induced to sign the contract on the material
grounds, which were not accurate, that the house was
suitable for conversion, and that access could be gained
from the back of the premises. It was clear that the
defendant would not have bought the premises if he did
not think that those conditions would be fulfilled to his
satisfaction. The plaintiff would have been entitled to
enforce the contract notwithstanding the misstatements
if these misstatements had not in this case gone to the
root of the contract.
The plaintiff then contended that the defendant had
by his actions intended to affirm the contract without
the right of way, and submttcd that the correspondence
conveyed this. The correspondence does not bear this
out. but rather proves that the defendant was entitled to
have the right of way conveyed to him as part of the
contract. No evidence was adduced that the defendant
did not intend to claim the right of way. The defendant
was ready and willing to take a conveyance which
included the right of way, and was thus maintaining the
contract; the question of repudiation did not conse-
quently arise, save by the plaintiff, who would not
execute a conveyance to the defendant to include the
right of way. As no defect in the title to the right of
way was proved, the plaintiff is not entitled to specific
performance. The defendant is consequently entitled to
recover as damages the loss sustained, namely the
amount of the deposit (£825), the auctioneer's fees
(£165), and the cost of investigating title when taxed.
Separate judgment by Fitzgerald J. Appeal allowed
unanimously.
(Pielow v. Ffrench O'Carroll—Supreme Court (Budd.
Fitzgerald and McLoughlin J. J.)—unreported—19th
December. 1969).
[COURT OF APPEAL1
•In re A SOLICITOR
1972 March 27 Lord Denning M.R., Karminski and Orr .
A solicitor appeared before the Disciplinary Committee of
The Law Society to answer allegations that he had (1) failed
to comply with the Solicitors' Accounts Rules 1967 and (2)
been guilty of professional misconduct in that he kept account
books in such a form that it was not possible to ascertain
readily at any one time the balances held in each client's
account. The committee found that the allegations had been
substantiated, that despite two adjournments the books were
still not written up and that it was not possible to say whether
there was any deficiency on his clicnt account. The committee
ordered the solicitor, who had relied upon an accountant to
write up his books, to be suspended from practice as a solicitor
for six months from January 15, 1972, during which time it
should be possible for him to submit an accountant's report.
The Divisional Court refused the solicitor's appeal.
On appeal to the Court of Appeal the solicitor put in a
satisfactory report from a new accountant showing no deficiency
and challenged the finding of professional misconduct.:—
Held by Lord Denning M.R., Karminski Orr . (1) that
the solicitor could not escapc responsibility hy handing over his
books to a book-keeper or accountant and in view of his repre-
hensible negligcnrc in failing to see that they were in order and
his subsequent delay in getting them written up the committee'a
finding of professional misconduct was justified.
In re M. [1930] N.Z L.R. 285 applied.
Ptr curiam. Negligence in a solicitor may amoiint to pro-
fessional misconduct if it is inexcusable and as such tu be
regarded as deplorable by fellow solicitors. Professional miscon-
duct is not confined to disgraceful or disshonourable conduct
(post, pp. 873 A—C, H. 874B. C).
(2) That since the solicited had at length put himself right
by the production of an accountant's report showing his books
to be in order his suspension from practice should be lifted and
instead he should be ordered to pay all the costs before the
committee, the Divisional Court and the Court of Appeal.
Decision of Divisional Court varied.
APPEAL from Divisional Court.
On December 16, 1971. the Disciplinary Committte of The
Law Society found that allegations against a solicitor that (1)
he had failed to comply with the Solicitors' Accounts Rules
1967 and (2) he had been guilty of professional misconduct in
the manner in which he kept account books had been sustan-
tiated. The committee ordered the solicitor's suspension from
practice for six months from January 15, 1972, " during which
period it should be possible for him to submit an accountant's
report covering the accounting period from April 1, 1970 to
Januarv 15. 1972."
On February 14, 1972, the Divisional Court dismissed the
solicitor's appeal.
The solicitor applied to the Court of Appeal for leave to
appeal. The first ground of appeal was that there was no
evidence to support the findings that he had been guilty of
professional misconduct and/or the admitted statement of facts
did not support such finding.
The facta are slated in the judgment of Lord Denning M.R.
(1972) 1. W.L.R. 869.