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The Gazette of the Incorporated Law Society of Ireland.
[AUGUST, 1916
Amendment (Ir.) Act, 1853 (16 & 17 Vict.,
c. 113), which had nothing to say to an action
of account. My Lord Chancellor has referred
to the substance of this case, and has come
to the conclusion that it was really brought
for an account, and is not a disguised money
claim.
I entirely agree with my Lord
Chancellor.
It would have been quite
competent for Barton, J., to make an order
limiting the plaintiffs' costs as he thought
fit, but he did not do so.
Molony, L.J.—I am also of opinion that
O. LXV., r. 3, does not apply to the facts of
this particular case.
The plaintiffs were
clearly entitled to an account. O. LXV., r. 3,
has application to the case of a money
demand.
In this case before the action was
instituted the plaintiffs made six applica
tions, from June 6 to July 21, 1914, to the
defendant for an account, but they did not
issue the writ until Sept. 15, 1914.
An
account was necessary, and it was necessary
for them to proceed as they did. Under the
circumstances O. LXV., r. 3, does not apply.
I also agree that the judge had jurisdiction
to restrict the costs, but he did not do so.
(Reported
I.L.T.R.,
Vol. L., 89.)
CHANCERY DIVISION.
(Before O'Connor, M.R.)
In re the Ardt-ully Copper Mines, Ltd.
Nov. 22, Dec.
17,
1915.—
Solicitor—Lien
for costs incitrred by
limited company
before winding-up orders—Priorities.
Mr. Lane-Joynt acted as Solicitor for the
Ardtully Copper Mines Company from its
incorporation until the date of an order to
wind up the Company, and as such Solicitor
he held certain documents belonging to the
company, including an agreement for a lease
of certain mining rights.
Pursuant to an
order of the Court he lodged these documents
in Court without prejudice to his lien thereon
for costs. The official liquidator entered into
an agreement with an intending purchaser
for the sale to him of the mining rights
comprised in the said agreement for a lease,
and obtained from him a deposit of £50.
The intending purchaser did not proceed
with the - purchase, and his deposit was
forfeited by him, and thus became assets of
the company. The official liquidator applied
by summons for an order that the money
realised by
the sale of certain chattels,
together with money already in the hands of
the liquidator (including the amount of the
said deposit) might be retained by him to
pay the solicitor's costs of the winding-up
petition, solicitor's costs as solicitor for the
liquidator, and the liquidator's remuneration.
Mr. Joynt applied that before any payment
be made out of the assets his claim for costs
should be satisfied in priority to all other
claims whatsoever.
O'Connor, M.R., in delivering judgment,
said.—The question raised in this case was
argued with great vigour on both sides, and
although the amount involved is small, the
question
raised
is
so
important
that I
reserved judgment thereon. Mr. Joynt was
acting as solicitor for the company before
the liquidation commenced, and as such
solicitor he held certain documents belonging
to the company, including the agreement for
a lease dated July 15, 1911. On Aug. 7, 1912,
an order was made that Mr. Joynt should
lodge these documents in Court without
prejudice to his lien thereon for costs, so
that an intended sale of the company's
undertaking might be carried out. The sale
did not, however, go
through, and
the
intending purchaser forfeited his deposit of
£50.
After deducting certain
expenses,
£40 17s. 6d. of the deposit remains in the
hands of the official liquidator, and Mr.
Joynt claims this £40 17s. 6d. by virtue of
his lien.
In my opinion the agreement for a
lease was an essential and necessary document
in the transaction of the intended sale. Mr.
Joynt lodged this document under an order
which preserved his lien thereon, and the
Court must keep faith with him, and I there
fore decide that this £40 17s. 6d. is, in the
first place, applicable towards Mr. Joynt's
costs when taxed. Subject to Mr. Joynt's
claim on foot of his lien the assets of the
company will be applicable to the payment
of the liquidator's costs and remuneration,
and as these will exhaust the assets no further
proceedings are to be taken on the liquidator
bringing in an affidavit of receipts and
disbiirsements. Mr. Joynt will get his costs
of this summons with his demand, that is to
say, out of the £40 17s. fid,, the liquidator
will have his costs of this summons as part
of his costs in the matter.
(Reported
I.L.T.R.,
Vol. L., 95.)