173 / 244
Law Society o f Ireland and the Defendant was an
Auctioneer practising in Limerick, heard by Judge
Barra O’Briain at Limerick Circuit Court on the
13th June, 1951, the action was brought to recover
the penalty prescribed by Section 3 of the
Conveyancers (Ireland) Act 1864 in the case o f un
qualified persons acting as Conveyancers “ for or
in expectation o f fee, gain or reward.”
It was
alleged in the Civil Bill that the Defendant, not
being duly qualified to act or practise as a
Conveyancer had drawn, prepared and had perfected
a tenancy agreement in writing dated the 10th
August, 1950 between Michael P. Holohan o f one
part and Standard Telephones & Cables Limited
of the other part, being a letting of office premises
in Limerick City, and that the Defendant had done
so for or in expectation of fee, gain, or reward
contrary to the Section.
The facts appearing in evidence were that on
the 27th June, 1950 the Defendant as agent for
the owner o f the premises had negotiated terms of a
letting agreement with a representative o f Standard
Telephones & Cables Limited, who, it was agreed,
would be responsible for the Defendant’s fee.
By letter dated the 4th July, 1950 Standard
Telephones & Cables Limited confirmed to the
owner of the premises the terms which had been
agreed upon, and requested that the owner should
have his agent prepare a letting agreement.
The
Defendant thereupon prepared a tenancy agreement
between the owner o f the premises and Standard
Telephones & Cables Limited.
The agreement
was duly executed by both parties and thereupon
Standard Telephones & Cables Limited paid to
the Defendant the sum of
£7
10s. od. described as
“ letting fee ” and it was proved that this fee,
which was calculated at 5 per cent, on the first
year’s rent, was the usual commission charged by
auctioneers in the City o f Limerick for negotiating
lettings of premises.
The agreement was not
under seal.
Mr. J. G. McMahon (instructed by Mr. Niall
S. Gaffney) for the Law Society submitted that the
Defendant was liable to the penalty provided by
the Statute because the preparation o f the agreement
was a necessary step, in the process which would
result in the payment o f a letting fee to the Defend
ant, and that the Defendant had prepared the
agreement and had it perfected in the expectation
that a& a result he would gain a reward consisting
of the letting fee. Counsel referred to the decision
in England in
Pacey
v.
Atkinson
(1930 1 A .E.R . 320)
as to what constitutes an act “ done for or in ex
pectation of any fee, gain or reward ” under the
Solicitors Act 1932 as amended by the Solicitors
Act 1941, in which Goddard L .J. in his Judgment
says : “ The word ‘ expectation ’ clearly indicates
that there need be no legal right to recover but a
mere expectation or hope that some reward will be
forthcoming as a result o f the action taken.”
Section 2 of the Conveyancers (Ireland) Act 1864
was referred to for the purpose o f indicating that
any contract in writing respecting real or personal
property constituted a conveyance for the purposes
o f the Act.
Mr. J. J. Kenny (instructed by Mr. A. J. Blood-
Smyth) for the Defendant contended that as the
letting fee was paid in respect only of the Defendant’s
services in negotiating the letting, and as he received
no payment for drawing the agreement and would
have been entitled to the letting fee whether he
prepared the agreement or not that he had not
prepared the agreement for or in expectation of fee,
gain or reward. It was further argued that the
agreement was not a conveyance because it was
not under seal.
The learned Circuit Court Judge heljsjr that the
agreement was a conveyance and that the preparation
of it constituted acting as a conveyancer within
the Act. He referred to the evidence o f the Defend
ant who agreed in cross-examination that no letting
fee would have been payable to him unless a letting
was made and that the only letting contemplated in
the circumstances was that contained in the written
agreement.
He stated that the preparation of
the agreement was a necessary step in the proceedings
which would result in the payment of the Defendant’s
letting fee and a
sine qua non
in the gaining by the
Defendant of a reward, and accordingly he held
that the Defendant prepared the agreement in the
expectation that as a result he would gain a reward.
As. there was no evidence that the Defendant had
wittingly encroached on the preserves of the legal
profession he imposed the minimum penalty o f £5
and awarded costs to the Plaintiff.
STAMP DUTY ON LEASES OF SITES
FOR BUILDING DEVELOPMENT
Members have written about the practice recently
adopted by the Revenue Commissioners of requiring
building leases to be lodged for adjudication of
the stamp duty.
The Society has been in touch with officers
of the Revenue Commissioners and it may be
taken that the following sets out the Commissioners’
practice in dealing with building leases.
1.
Where no buildings have been completed at the date
of the lease
:—
I f a lease of a site is granted in consideration of
(a)
a rent reserved by the lease and
(b)
of a bona