The Gazette 1952-1955

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