This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
As to costs under s. 80.
(e) Per V.-c. W. in Ex p. Buck, (1864) 1 H. & M. 519; 33 L. J. Ch. 79. (f) lb.
(g) Be Liverpool Improvement Act, (1868) 5 Eq. 282; 37 L. J. Ch. 376; Re Dublin (South) City M. Co., (1890) 25 L. R. Ir. 265; Re London United Tramways Act, 1906, 1 Ch. 534. S. 42 (2) of the L. P. Act, 1925, applies, it is conceived, only to contractual stipulations, and docs not alter the rule laid down by s. 82 of the L. C. C. Act, 1845.
(h) Re L. & S. W. R. Co., (1848) 2 Ph. 772; Ex p. G. N. B. Co., (1848) 16 Si. 171; 17 L. J. Ch. 314.
(i) See Be London Bridge Acts, (1842) 13 Si. 176, 180.
(k) Be Byron, (1853) 4 D. M. & G. 694, a case under a kindred Act; Lake v. E. C. B. Co., (1852) 19 L. T. (O. S.) 323. And see An. Pr., nn. to Ord. LXV. r. 1.
As regards costs under s. 80, and by whom, in various cases, they are to be borne, there are numerous decisions (m). The only uniform principle which can be traced in the authorities is, that the company is not to be needlessly burdened with costs. What are necessary costs must depend in each particular case upon the special circumstances; and it would be impossible to lay down any inflexible rule upon the subject (n).
Application of the 80th Section.
(l) Ex p. Bowling, (1881) 7 L. R. Ir. 173.
(m) See An. Pr., ubi cit.; Browne & Theob. 4th ed., notes to s. 80, p. 203 et seq.; Seton, 7th ed. 2394 - 2405; see also Re Leeds Grammar School, 1901, 1 Ch. 228; 70 L. J. Ch. 89, where a corporation having compulsorily purchased charity lands was ordered to pay the costs of a petition for investment. The cost payable by promoters for interim investments include increased brokerage charge duo to investment in railway stock, Re Gaselee, 1901, 1 Ch. 923; 70 L. J. Ch. 441; also brokerage on sale of investments for purpose of payment out to a person absolutely entitled, Re Magdalen Coll., Oxf., 1901, 2 Ch. 786; 70 L. J. Ch. 821; and see Re London County Co., (1901) 84 L. T. 808, where payment out of proceeds of churchyard compulsorily taken was allowed for repairs of chancel and parliamentary costs, following Ex p. Claypole (Rector of), (1873) 16 Eq. 574; Re Ormerod's S. E., 1892, 2 Ch. 318.
(n) See as to costs under cognate private Acts, Seton, 7th ed. p. 2407.
The question whether an Act, which though passed since the L. C. C. Act, 1845, yet incorporates sections of an earlier Act authorising the compulsory purchase of land, incorporates also the provisions of the L. C. C. Act, including those as to the payment of costs, has been the subject of conflicting decisions. In Re Cherry's S.e. (o), a public improvements Act, passed after the L. C. C. Act, enacted that "all and singular the enactments and provisions" of a like Act passed before the L. C. C. Act should extend to the new improvements as if they had been authorised by the former Act: and Lord Westbury held that the incorporation of the L. C. C. Act was excluded, so that a landowner could not claim the costs which would be payable by the public body under the latter Act. The Court of Appeal refused (p) to follow this decision, where the later Act was not the same as that to which Lord Westbury's judgment applied, though the difference between the two Acts was very slight; and Lord Esher, M. B,., expressed his entire disapproval of the Lord Chancellor's decision. But in a later case (q), arising under the same Act as was the subject of decision in Re Cherry's S. E., Cotton, Bowen, and Fry, L. Jj.,followed the decision in the earlier case, and expressed their entire concurrence with that decision and their disagreement from the dicta of Lord Esher.
Costs under Act later than L. C. C. Acts, but incorporating earlier Act.
Ord. LXV. r. 1 of the R. S. C. 1883, did not give the Court any jurisdiction to order the payment of costs in cases where, before the Judicature Acts and Rules, there would have been no jurisdiction to make such an order (r); but s. 50 (1) of the Jud. Act, 1925 ((replacing s. 5 of the Jud. Act, 1890), gives the Court an extended jurisdiction enabling them to order the promoters to pay costs even in those cases which are excepted under s. 80 (s).
Jurisdiction as to costs under Judicature Acts.
(o) (1862) 4 D. F. & J. 332; see and distinguish Re St. Sepulchres Est., (1864) 4 D. J. & S. 232; 33 L. J. Ch. 372, where both the special Acts were passed subsequently to the L. C. C. Act.
(p) Re Wood's Est., (1886) 31 Ch. D. 607; 55 L. J. Ch. 488.
(q) Re Mills' Est., (1886) 34 Ch. D. 24; 56 L. J. Ch. 60.
(r) lb., overruling Ex p. Mercers' Co., (1879) 10 Ch. D. 481; 48 L. J. Ch. 384; Re St. Katharine's Hosp., (1881) 17 Ch. D. 378; Re Lee and Hemingway, (1883) 24 Ch. D. 669. See also Re Wood's Est., sup.; Re Knight's Will, (1881) 26 Ch. D. 82, 91; 53 L. J. Ch. 223.
Upon an arbitration under the L. C. C. Act, the costs need not be incorporated in the award, but may be ascertained at any subsequent period by the persons or person (whether arbitrators or umpire) by whom the award is made (t). And by the Lands Clauses (Taxation of Costs) Act, 1895, repealing and re-enacting s. 1 of the L. C. C. Act, 1869, either party may require the costs of the arbitration to be settled by one of the taxing-masters of the High Court (u).
Costs of arbi-tration under L. C. C. Art.
If a solicitor, without special instructions, prepares the conveyance during the existence of a known impediment to completion, upon which the matter eventually goes off, he ordinarily cannot claim the costs of the conveyance (x); and where the sale was abortive owing to the solicitor having inserted an inaccurate statement in the particulars he was disallowed his costs (y).
Solicitor, when dis-allowed costs.
If a solicitor, who is either alone or jointly with others a trustee for sale, acts professionally in the sale, he can in strictness charge only costs out of pocket; and if he procure another solicitor to transact the business on agency terms, the benefit thus secured will enure to the trust estate (z); and if the trustee is in partnership the same disability to make a profit out of the trust attaches to the firm. Under the P. T. Act, 1906, s. 9, however, 'the Public Trustee has power to charge fees (a); and a judicial trustee has also power to charge (b). By s. 42 of the T. Act, 1925, where the Court appoints a corporation, other than the Public . Trustee, to be a trustee either solely or jointly with another person, the Court may authorise the corporation to charge such remuneration for its services as the Court may think fit (c).