The Gazette 1961 - 64

Vendor and Purchaser—Property subject to a legal charge. By a written agreement dated 22nd February, 1961, incorporating the English National Conditions of Sale, i yth ed., the plaintiffs agreed to sell, and the defendant to buy, certain property. After the date of completion had passed, the plaintiffs gave notice to complete within twenty-eight days in accordance with Condition 22. The abstract of title showed a legal charge, on which was endorsed the receipt by the chargee by way of legal mortgage. That receipt, however was dated two days after the date of the conveyance by the mortgagor to a purchaser from him. The defendant objected that the receipt of the money secured by the legal charge operated as a transfer of the legal estate to the mortgagor, who had paid all the moneys, and it did not free the property from the legal charge; he contended that the plaintiffs did not have a good title and were in consequence unable to give a valid notice to complete under Condition 22 because they were not " able, ready and willing to complete". The plaintiffs, contending, inter alia, that by reason of the breaches laid by the defendant of the agreement they were no longer bound to perform it, claimed forfeiture of the deposit and a declaration that they were at liberty to resell the property. Ungoed-Thomas J. said that, on the true con struction of s. 115 of the Law of Property Act, 1925, the words " and where there is no right to keep the mortgage alive the receipt does not operate as a transfer" in subsection (3) of that section were subsidiary to subsection (3) alone, and did not apply to the previous subsections. Accordingly, the receipt of the money secured by the mortgage operated under s. 115 (2) to transfer the benefit of the mortgages to the then vendor who had in fact paid the money ; so, by then reason of the doctrine that the acquisition of the legal estate " feeds " the estoppel, the benefit of the mortgage which the then vendor acquired after the conveyance was vested in the then purchaser. But since, on the true con struction of s. 87 of the Law of Property Act 1925, a chargee by way of legal mortgage did not have a term, the then vendor did not acquire a legal estate when he paid the money secured by the legal charge, and there was in consequence no legal estate out standing upon which the doctrine of feeding the estoppel could operate. Accordingly, the require ments of Condition 22 that the vendors should be able and willing to complete was satisfied. On the true construction of paragraph (2) of Condition 22 of the National Conditions of Sale, both parties had agreed to make time of the essence of the contract by virtue of that condition, so that the reasonableness or otherwise of the notice was immaterial and the plaintiffs were entitled to give such notice as they 48

rights of the party whose costs are being taxed", and came to the conclusion that the costs of drawing and approving the deed of settlement were not properly chargeable to the defendant. The phrase " attainment of justice " meant the attainment of justice between the plaintiff and the defendant (Morey and Anor. v. Woodfield. The Weekly Law Reports 1963, July 29th). Order 99 Rule 11 (2) of the Rules of the Superior Courts of this country which were introduced at the beginning of the year contain a like provision. It would seem that the position is not affected by giving liberty to apply as to the disposal of the monies, and therefore each item incurred in con nection with the trust deed and its approval should be borne by the plaintiff. DECISIONS OF PROFESSIONAL INTEREST 'Rent Restrictions Act, 1960: Application under Section 20 : No appeal to the Circuit Court. A member has supplied the facts of the following case decided recently in the Circuit Court in Dublin. A tenant applied under Section 20 of the Rent Restrictions Act 1960 for a provisional order fixing the lawful rent of the dwelling. Section 21 provides for the procedure to be adopted by the District Justice in dealing with the application and also provides for the order which he may make. In certain circumstances the District Justice may " by order determine provisionally " (a) the lawful additions to basic rent (b) the lawful rent, or, in certain other circumstances (i) the basic rent of the dwelling under Section 9 (ii) the lawful additions thereto and (iii) the lawful rent. Sub-section 2 of that section provides as follows : " an appeal shall not lie to the Circuit Court from the determination by a District Justice on an application under Section 20 of this Act". The District Justice notified the landlord of the proposed application pursuant to Section 21 (i) (b) and the landlord in reply to the notice served on him furnished certain information. As a result of this the application was listed for hearing and when it came on for hearing the District Justice refused to make a provisional order. Against this refusal the applicant appealed to the Circuit Court. Counsel for the applicant contended that the word " determination " in Section 21 (z) should be construed as an actual determination of the rent and that a refusal by the District Justice to grant any provisional order would not come within the meaning of the word " determination " and that an appeal would accordingly lie in the ordinary way. It was held, however, that no appeal lay.