Wakilii

Christie and Another v Official Receiver and Others (C.A. 11-1936.)

East African Court of Appeal · [1936] EACA 82 · 1936 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya ruling dismissing application for charging order on bankruptcy dividend
Decision
Solicitors' application for charging order on bankruptcy dividend refused

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a creditor's proof in respect of a judgment against a bankrupt is admitted, the solicitor who acted for the creditor in obtaining the judgment cannot obtain from the Court in bankruptcy a charging order on the dividend for his costs. The common law lien does not exist in bankruptcy jurisdiction, which is entirely the creation of statute law.

Outcome

Solicitors' application for charging order on bankruptcy dividend refused

Facts

Ross & Christie, solicitors, obtained two judgments for Ali bin Awath against Sheikh Nassor bin Mohamed in 1933. They subsequently acted for Ali bin Awath in bankruptcy proceedings against Sheikh Nassor, including obtaining a receiving order and appearing at the public examination. After Sheikh Nassor was adjudicated bankrupt, the Deputy Official Receiver employed Ross & Christie to set aside two wakfs made by the bankrupt, which was successful. The proceeds were credited to the bankrupt estate. Ross & Christie's costs as advocates for the Deputy Official Receiver were paid, but they sought a charging order on the dividend payable to Ali bin Awath for their unpaid costs in obtaining the original judgments and conducting the bankruptcy proceedings. Ali bin Awath himself subsequently became subject to a receiving order and a composition scheme was approved. The trustee of Ali bin Awath's composition opposed the application.

Issues

  1. Whether a solicitor who obtained judgment for a creditor prior to the debtor's bankruptcy can obtain a charging order on the dividend payable to that creditor for unpaid costs.
  2. Whether the common law lien of a solicitor for costs extends to bankruptcy proceedings.

Orders

  • Appeal dismissed with costs.
  • Official Receiver to have costs out of the estate but appellants not responsible for Official Receiver's costs.
  • Appellants to have one day's costs payable by respondents in connection with ruling given during appeal.

Rules and key headnotes

Commercial Law — Solicitors' Liens — Common Law Lien in Bankruptcy
A solicitor's common law lien for costs over property recovered or preserved does not extend to bankruptcy proceedings, as the common law jurisdiction does not exist in the case of bankruptcy, which is entirely the creation of statute law.
Commercial Law — Solicitors' Costs — Charging Orders on Dividends
Where a creditor's proof in respect of a judgment obtained against a bankrupt is admitted, the solicitor who acted for the creditor in the action cannot obtain from the Court in bankruptcy a charging order on the dividend for his costs.
Civil Procedure — Costs — Official Receiver as Stakeholder
Where the Official Receiver is a mere stakeholder with no interest to oppose an application, he should have his costs out of the estate but the applicant should not be responsible for those costs.

Legislation cited (4)

  • Bankruptcy Ordinance s.99
  • Bankruptcy Ordinance s.3(8)
  • Bankruptcy Ordinance s.44
  • Solicitors Act 1860 s.28

Cases cited (27)

  • Markus v Bracia (1 E.A.C.A. 17)
  • In re Cook ex parte Cripps (1899 1 Q.B. 863)
  • Rasul Bux v Dalal (4 E.A.L.R. 99)
  • John and Edward v G S Lezar (12 K.L.R. 66)
  • Hall v Lever (66 E.R. 1158)
  • Meguerditchian v Lightbound (1917 2 K.B. 298)
  • Welsh v Hole (99 E.R. 155)
  • Eisdell v Connigham (28 L.J. Exch. 213)
  • Berchall v Pugin (10 C.P. 397)
  • Jones v Turnbull (150 E.R. 897)
  • Guy v Churchill (35 Ch. D. 489)
  • Ormerod v Tate (102 E.R. 179)
  • Cole v Eley (1894 2 Q.B. 180)
  • Tyabji Dayabhai and Co v Jctha Devji (51 Bom. 855)
  • Ross v Buxton (42 Ch.D. 190)
  • In re Wadsworth (29 Ch.D. 517)
  • In re Meter Cabs Ltd (1911 2 Ch. 557)
  • Ex parte Bryant (56 E.R. 19)
  • In re Born (1900 2 Ch. 433)
  • Brereton v Edwards (21 Q.B.D. 488)
  • Shippey v Grey (49 L.J.Q.B. 524)
  • Mhatre v Mhatre (52 Bom. 336)
  • Lann v Church (56 E.R. 749)
  • Verity v Wylde (62 E.R. 164)
  • In re Prior (1921 3 K.B. 333)
  • In re Deakin (1900 2 Q.B. 484)
  • In re Wood (1897 1 Q.B. 314)

Full judgment

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Christie and Another v Official Receiver and Others (C.A. 11-1936.) [1936] EACA 82 (1 January 1936)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.