The Gazette 1961

rights of the party whose costs are being taxed",

and came to the conclusion that the costs of drawing

and approving the deed of settlement were not

properly chargeable to the defendant. The phrase

" attainment of justice " meant the attainment of

justice between the plaintiff and the defendant

(Morey and Anor.

Woodfield.

The Weekly Law

Reports

1963, July 29th).

Order 99 Rule 11 (2) of the Rules of the Superior

Courts of this country which were introduced at the

beginning of the year contain a like provision. It

would seem that the position is not affected by

giving liberty to apply as to the disposal of the

monies, and therefore each item incurred in con

nection with the trust deed and its approval should

be borne by the plaintiff.

DECISIONS OF PROFESSIONAL

INTEREST

'Rent Restrictions Act,

1960:

Application under

Section

20 :

No appeal to the Circuit Court.

A member has supplied the facts of the following

case decided recently in the Circuit Court in Dublin.

A tenant applied under Section 20 of the Rent

Restrictions Act 1960

for a provisional order

fixing the lawful rent of the dwelling. Section 21

provides for the procedure to be adopted by the

District Justice in dealing with the application and

also provides for the order which he may make.

In certain circumstances the District Justice may

" by order determine provisionally "

(a)

the lawful

additions to basic rent

(b)

the lawful rent, or, in

certain other circumstances (i) the basic rent of the

dwelling under Section 9 (ii) the lawful additions

thereto and (iii) the lawful rent. Sub-section 2 of that

section provides as follows :

" an appeal shall not

lie to the Circuit Court from the determination by

a District Justice on an application under Section 20

of this Act".

The District Justice notified the landlord of the

proposed application pursuant to Section 21 (i)

(b)

and the landlord in reply to the notice served on him

furnished certain information. As a result of this

the application was listed for hearing and when it

came on for hearing the District Justice refused to

make a provisional order. Against this refusal the

applicant appealed to the Circuit Court.

Counsel for the applicant contended that the

word " determination " in Section 21

(z)

should be

construed as an actual determination of the rent and

that a refusal by the District Justice to grant any

provisional order would not come within the

meaning of the word " determination " and that an

appeal would accordingly lie in the ordinary way.

was held, however, that no appeal lay.

Vendor and Purchaser—Property subject to a legal charge.

By a written agreement dated 22nd February, 1961,

incorporating the English National Conditions of

Sale, i yth ed., the plaintiffs agreed to sell, and the

defendant to buy, certain property. After the date

of completion had passed, the plaintiffs gave notice

to complete within twenty-eight days in accordance

with Condition 22. The abstract of title showed a

legal charge, on which was endorsed the receipt by

the chargee by way of legal mortgage. That receipt,

however was dated two days after the date of the

conveyance by the mortgagor to a purchaser from

him. The defendant objected that the receipt of the

money secured by the legal charge operated as a

transfer of the legal estate to the mortgagor, who had

paid all the moneys, and it did not free the property

from the legal charge; he contended that the

plaintiffs did not have a good title and were in

consequence unable to give a valid notice to complete

under Condition 22 because they were not " able,

ready and willing to complete".

The plaintiffs,

contending,

inter alia,

that by reason of the breaches

laid by the defendant of the agreement they were no

longer bound to perform it, claimed forfeiture of the

deposit and a declaration that they were at liberty

to resell the property.

Ungoed-Thomas J. said that, on the true con

struction of s. 115 of the Law of Property Act, 1925,

the words " and where there is no right to keep the

mortgage alive the receipt does not operate as a

transfer" in subsection (3) of that section were

subsidiary to subsection (3) alone, and did not

apply to the previous subsections. Accordingly, the

receipt of the money secured by the mortgage

operated under s. 115 (2) to transfer the benefit of

the mortgages to the then vendor who had in fact

paid the money ; so, by then reason of the doctrine

that the acquisition of the legal estate " feeds " the

estoppel, the benefit of the mortgage which the then

vendor acquired after the conveyance was vested in

the then purchaser. But since, on the true con

struction of s. 87 of the Law of Property Act 1925,

a chargee by way of legal mortgage did not have a

term, the then vendor did not acquire a legal estate

when he paid the money secured by the legal charge,

and there was in consequence no legal estate out

standing upon which the doctrine of feeding the

estoppel could operate. Accordingly, the require

ments of Condition 22 that the vendors should be

able and willing to complete was satisfied. On the

true construction of paragraph (2) of Condition 22

of the National Conditions of Sale, both parties had

agreed to make time of the essence of the contract

by virtue of that condition, so that the reasonableness

or otherwise of the notice was immaterial and the

plaintiffs were entitled to give such notice as they