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done by a solicitor in a compulsory liquidation, in
cluding such essentially non-contentious work as
conveyancing.
It appears to me that the definition of contentious
business in that Act and the Solicitors Act, 1957,
must include conveyancing business done in an
action. The scope of the Solicitors' Remuneration
Order, 1883, must, therefore, be treated for the
future as not extending to conveyancing business
done in an action, the phrase "in or for the purposes
of proceedings begun before a court" clearly includ
ing conveyancing business done in an action. This
result, assuming it to be correct, as I hold that it is,
may be said to have been achieved in an odd way,
but there is this advantage, that there is now a clear
and, I should have thought, logical division between
contentious and non-contentious business. All busi
ness is now to be regarded as contentious which is
done with a view to the proceedings being begun,
and that they are in fact begun, and also all business
done in the course of the proceedings. All other
business is non-contentious.
As I have already said, I have found the whole
matter one of great difficulty, and I recognise that a
different view could well be entertained. Only one
thing is certain, and that is that the position is far
from clear. Whether or not all costs properly in
curred in a winding-up by the High Court should be
taxed under Appendix N is a matter of policy, on
which it is not for me to pronounce. I would, how
ever, point out that, if it were to be decided that that
policy should be followed, it could be achieved by a
short amendment to the Companies (Winding-up)
Rules, 1949.
In the result the summons will be
dismissed.
Note :
This is an English decision on the con
struction of the English Statutory definitions of
contentious and non-contentious business.
There
are no such Statutory definitions in Ireland.
In
particular, the decision does not affect the application
of the Solicitors' Remuneration General Order 1884
clause 2
(c)
to the costs of conveyancing business in
Court proceedings.
(Re Simpkin Marshall Ltd. (1958) 3. A11E.R. 611.)
Bankrupt solicitor cannot defraud his creditors bj giving
property to his wife after marriage.
On Jan. 18, 1955, the deceased (a solicitor) and his
wife (referred to hereinafter as "the widow") were
married. About the time of the marriage the deceased
opened a bank account in the joint names of himself
and the widow on which either could draw. On
Feb. 14, 1955, the deceased entered into an agree
ment in writing to purchase a freehold house for
some £15,000, and he paid the deposit on the pur
chase price from his account with his firm. By a
conveyance dated Mar. 15, 1955, which recited that
there had been an agreement with the widow for the
purchase, the property was conveyed by the vendor
to her. The deceased was not a party to the con
veyance nor did it recite that it was made by his
direction. The balance of the purchase price was
provided by a banker's draft on the joint account,
which at that date was in debit, but to which some
£18,000 misappropriated from the proceeds of sale
of securities of clients of the deceased was credited
shortly afterwards. The deceased was at all material
times insolvent and heavily indebted in respect of
clients' funds that he had misappropriated. He died
on Nov. 17, 1957. His executors obtained an order
for administration of his insolvent estate in bank
ruptcy under s. 130 of the Bankruptcy Act, 1914.
The trustee in the administration brought an action
to recover the house from the widow under s. 172
of the Law of Property Act 1925, and a motion in
bankruptcy to recover from her chattels which were
at the house, also under s. 172. The court found that
there was a gift of the house to the widow and that
there was no consideration for the gift; and that
some at any rate of the chattels appeared to have been
voluntary gifts to her by the deceased.
Held by Harman J. that the trustee was entitled
to recover the house known as "Peppermills," Lam-
berhurst, Kent and chattels (subject to an inquiry as
to what chattels the widow might be entitled to
retain, e.g., as wedding gifts) from the widow under
s. 172 of the Law of Property Act, 1925, for the
following reasons—
(i) the claims under s. 172 could be maintained
by the trustee in the administration in bankruptcy
under s. 130 of the Bankruptcy Act, 1914, but, if this
were not so, a representative creditor by whom the
claim would be maintainable would be added as
plaintiff.
(ii) though a conveyance within s. 172 of the Law
of Property Act, 1925, need not, it seems, be a con
veyance in writing yet there was a conveyance of the
house in writing within s. 172 in the present case,
since the deceased had become beneficial owner of
the house on his contracting to buy it, and the deed
of conveyance thereof to the widow had transferred
his equitable interest to her, notwithstanding that he
was not a party thereto, and thus was a conveyance
within s. 172. (In Re Eichholz Deed. (No. i)—(1959)
i. A11E.R. 169.)
Note:
Section 172 of the Law of Property Act
1925 re-enacts the Statute 13 Elizabeth cap. 5.
It
enacts that, save as provided, every conveyance of
property made, whether before or after the com
mencement of the Act, with intent to defraud cred
itors, shall be voidable at the instance of any person
thereby prejudiced.
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