The Gazette 1949-1952

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