M'Larnon v Carrickfergus Urban District Council; and 38 & 39 Vict. C. 44

• Jurisdiction: Ireland
• Judgment Date: 31 October 1903
• Date: 31 October 1903
• Docket Number: (1902. No. 5852.)
• Court: King's Bench Division (Ireland)

M'Larnon

and

Carrickfergus Urban District Council; and in the Matter of 38 & 39 Vict. c. 44 (1).

K. B. Div.

(1902. No. 5852.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Solicitor — Charging order — “Property recovered or preserved” — Building contract — Retention money — Assignment of — Priority — 38 & 39 Vict. c. 44, s. 3.

The Plaintiff recovered judgment against the defendants in an action brought to recover £1040 15s. 1d. for—(1) extras under a building contract, and (2) 10 per cent, of the contract price retained by the defendants under a term of the contract. Three months prior to the issue of the writ in the action portion of the said retention money coming to the plaintiff was assigned by him for valuable consideration to W. G., the latter being a member of the Urban Council, the defendants. The judgment, entered at the trial for the plaintiff, was subsequently set aside by an order of the King's Bench Division, whereupon the plaintiff appealed to the Court of Appeal; but, pending the appeal, a consent was signed by the parties, under the terms of which the defendants were to pay to the plaintiff portion of the sum claimed, in satisfaction of his full claim under the contract, the plaintiff paying the defendants their taxed costs of the action. Upon an application by the solicitor for the plaintiff in the action for a charging order for his costs under 39 & 40 vict. c. 44, s. 3:—

Held, (1) that the money payable under the consent was money “recovered or preserved in the action” by the instrumentality of the solicitor for the plaintiff; and (2) that the assignee, having known of and adopted the proceedings, and now seeking payment out of the money so recovered, was not entitled, as a bona fide purchaser for value without notice, to payment in priority over the costs of the solicitor for the plaintiff.

Motion on Notice.

The action was brought by the plaintiff to recover the sum of £1040 15s. 1d. claimed to be due by the defendants to him, on foot of a contract dated 29th September, 1900, and made between the plaintiff and the defendants for the construction of a system of sewerage for the town of Carrickfergus, which sum included £402 8s. 9d., being 10 per cent. of the sum of £4024 7s. 5d., paid by the defendants to the plaintiff on foot of interim certificates, which 10 per cent. the defendants claimed, on the true construction of the contract, they were entitled to retain for a period of twelve months after their engineer had certified that the work under the contract was completed to his satisfaction, the balance of the claim being on foot of extras.

Portion of the said retention money, amounting to £289, was by an indenture dated 8th February, 1902, assigned by the plaintiff to William Gorman and James Charles Gorman as security for money due to them for materials supplied by them to the plaintiff to enable him to carry out his contract, notice of which assignment was on the 10th February, 1902, served upon the defendants, of which body William Gorman was a member.

The writ was issued on the 8th May, 1902, and the action, which was tried before Mr. Justice Madden and a special jury of the city of Dublin, during the Michaelmas Sittings, 1902, resulted in a verdict and judgment being entered for the plaintiff for the sum of £925.

This judgment was by an order of the King's Bench Division dated 22nd April, 1903, set aside, and judgment entered for the defendants, the Court holding that no certificate of the proper completion of the works had in fact been presented to the defendants, and that a certain informal document relied upon by the plaintiff did not amount to such a certificate. The plaintiff served...