20 / 266
Course C
C
onveyancing
(18 lectures, o f which at least 14
must be attended) :—General Practice o f a solicitor’s
office (20 lectures o f which at least 15 must be
attended) and the rights, duties and responsibilities
or solicitors (4 lectures o f which at least 3 must be
attended). Lectures will be delivered as follows :—
Michaelmas Sittings, 12 ; Hilary Sittings, 21 ; Easter
Sittings, 9. Lectures on Monday at 3.30 and Wed
nesday at 2.15 o’clock, save where otherwise notified.
For a selection o f recommended reading see the
published syllabus for the Intermediate and Final
Examinations. The lecturer will not necessarily
undertake to cover the entire field in each subject,
or lecture out of any particular text book. He will
advise the class as to its reading and will assume
that each student will have read on the lines advised,
in advance o f each lecture, on the subject matter
o f the lecture. The aim o f lectures will be to guide
students in their work and to illustrate, explain and
supplement their reading.
A written examination will be held at the end of
each term’s lectures.
Courses B and C may be attended in the same year,
but Course A
must
be completed before either
Course B or C is commenced. Every apprentice is
obliged to take Courses A , B and C.
SALE BY WAY OF SUB-LEASE—
INCIDENCE OF COSTS
A
n
important'decision was recently given by Mr.
Justice Dixon in the High Court in Sims-Clarke
v.
Ilet, Ltd., on the question o f the liability o f the lessee
to pay the lessor’s costs o f a lease o f premises in
consideration of a substantial fine and a rent reserved
by the lease. The facts were as follows :—
The defendants held property under a building
lease at a progressive rent which rose after the first
eight years to £158 per annum and continued at the
same rate. The lease contained a covenant by the
defendants to erect 60 dwelling houses within eight
years from 1st May, 194(3. The defendants built 15
dwelling houses o f which 2 were let at rack rents
aggregating £480 per- annum;
13 were sub
demised by sub-leases reserving fines and yearly
rents—the said rents aggregating £202 per annum;
and 44 sites were subleased to builders at rents
aggregating £706 per annum. The plaintiff-purchaser
purchased one o f the houses from the defendants,
the sale being carried out by means o f a sub-lease
in consideration o f a fine o f £4,500, and reserving
a yearly rent o f
£
18. The defendants’ solicitors’
costs were calculated on the commission scale on
the fine and on the rent, and a dispute arose as to
whether the plaintiff, as lessee, was liable to pay
these costs.
The ordinary common law rule is that in the
absence o f a provision in the contract dealing with
the incidence o f the costs, the lessee is legally
obliged to pay the lessor’s costs o f the lease and that
has always been understood to apply both to a lease
reserving a rent only and to a lease in consideration
o f a fine as well as o f a rent. This rule was modified
in
re
Webb, Still
v.
Webb (1897 I Ch. 144), in which
the head note reads as follows
'“
Leasehold
property held with other property under one lease
was sold by auction subject to a condition that the
purchaser should accept an underlease for the whole
o f the unexpired term, less three days, at an appor
tioned ground rent. The vendors’ solicitors, by
virtue of Rule 5 o f part 2, Schedule I, to the General
Order under the Solicitors’ Remuneration Act, 1881,
claimed to be entitled to a scale charge in respect
o f the price and to a further scale charge in respect
o f the rent.
Held, that the transacdon, though carried out
by an underlease, was in fact a sale, and that the
solicitors were not entitled to charge in respect of
the rent but quaere whether this was not business
not provided for by Schedule I and therefore to be
charged in accordance with the old system as modified
by Schedule 2.” In Still
v.
Webb the aggregate
rents reserved by sub-leases- equalled the rent
reserved in the vendor’ s lease.
No profit rent
accrued to the vendor from the sub-leases and the
point of the decision seems to have been that the
sale by way o f sub-lease were merely a conveyancing
device to avoid the necessity for an apportionment
o f the ground rent, and that for this reason the
transactions were in substance sales and not leases.
Mr. Justice Dixon having considered Still
v.
Webb
delivered the following judgment in Sims-Clarke
v.
Ilet, Ltd., on 18th December, 1951.
“ The first question I have to decide is whether
the transaction between the parties should be
described as a sale or a lease, i f it is a lease, I am
satisfied that it is established in England that a
term is implied in the agreement between the
parties that the lessee should pay the lessor’s costs :
see Williams Vendor and Purchaser (4th Edition),
p.
h i
, note («). There is no clear Irish decision to
that effect; but there is a suggestion by Lord
Sugden in Burke
v.
Smith, 9 Ir. Eq. 135, that the
same custom or rule should apply here and that
custom is referred to in the text books on costs
such as Gill and Flenry. It is also the basis of
opinions, numbers 36 and 37 expressed by the
Council of the Law Society in the current Solicitors’
Calendar.
In No. 36 it is stated: “ In the absence o f any
special agreement on the subject, the lessor’s solicitor
is entitled to prepare the lease, and the lessee is