The Gazette 1958-61

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. 97

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.) 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 Bankrupt solicitor cannot defraud his creditors bj giving property to his wife after marriage.