The Gazette 1916-17

[AUGUST, 1916

The Gazette of the Incorporated Law Society of Ireland.

26

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.)

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