Auctioneers and House Agents Act , 1967

1 Interpretation.

1.—(1) In this Act—

“the Accountant” means the Accountant attached to the High Court by virtue of section 55 (1) of the Courts (Supplemental Provisions) Act, 1961;

“bank” means a bank in which it is for the time being lawful for a trustee (unless expressly forbidden) to invest trust funds by placing them in an interest bearing deposit account;

“client” includes (unless the context otherwise requires) a person to whom a refund of a deposit is due;

“client account” means a current or deposit account in the name of an auctioneer or house agent in the title of which the word “client” appears and which is kept in a bank at a branch in the State;

“company” means a company within the definition contained in the Companies Act, 1963;

“the Official Assignee” means the person who is for the time being the Official Assignee in Bankruptcy;

“Principal Act” means the Auctioneers and House Agents Act, 1947.

(2) References in this Act to auctioneers shall be construed as referring only to persons required to be licensed as auctioneers under the Principal Act and references in this Act to house agents shall be construed as referring only to persons required to be licensed as house agents under the Principal Act.

(3) References in this Act to an account (being an account in a bank) shall, unless the context otherwise requires, include a reference to a deposit receipt.

(4) References in this Act to money for a client include (unless the context otherwise requires) references to a deposit paid to an auctioneer or house agent as a stakeholder or otherwise paid to him in connection with the purchase or renting of property where a right to the money has not passed to a client.

(5) Save where the context otherwise requires, this Act shall be construed as applying only to transactions carried out by an auctioneer or house agent in his capacity as auctioneer or house agent.

2 Increase of deposit in High Court.

2.—Notwithstanding section 14 (a) of the Principal Act, the deposit maintained in the High Court under that Act shall, in respect of any period beginning on or after the 6th day of July, 1967, for which an auctioneer's licence or a house agent's licence is in force, be of the value of five thousand pounds, and the references in section 14 (d) (ii) and section 15 (3) (b) of the Principal Act to two thousand pounds shall be construed accordingly.

3 Substitution of one form of deposit for another.

3.—(1) Notwithstanding section 16 of the Principal Act, a person who has made a deposit in money in the High Court under that Act may obtain a release of the deposit on condition that he has made in the High Court either a deposit of authorised securities of the required value or a deposit of a guarantee bond which is retrospective to such extent as may be necessary in order to meet any proper claim in respect of which money could have been paid out of the released deposit.

(2) Notwithstanding section 16 of the Principal Act, a person who has made a deposit in the High Court under that Act by the deposit of authorised securities may obtain a release of the deposit on condition that he has made in the High Court either a deposit in money to the required amount or a deposit of a guarantee bondwhich is retrospective to such extent as may be necessary in order to meet any proper claim in respect of which money could have been paid out of the released deposit.

(3) In this section—

“guarantee bond” means a guarantee bond of the type mentioned in section 14 (d) (ii) of the Principal Act;

“authorised securities” means securities authorised by rules of court for the investment of moneys under the control of the High Court;

“required value” means the value required by either section 14 of the Principal Act or section 2 of this Act, as may be appropriate.

4 Keeping and preservation of accounts

4.—(1) An auctioneer or house agent shall at all times keep properly written up such accounts as may be necessary to show all his dealings with, and particulars of and information regarding, moneys received or held by him for, or paid by him to or on behalf of, each client.

(2) An account kept by an auctioneer or house agent under this section shall be preserved for at least six years from either the date of the last entry therein or the date of the last dealing with a client's money which is required by this Act to be recorded therein, whichever is the later.

5 Keeping of client accounts.

5.—(1) (a) Every auctioneer and every house agent shall open and keep a client account and may, if he thinks fit, open and keep more than one client account.

(b) An auctioneer or house agent who keeps more than one client account shall keep all such accounts at the same bank unless the District Court, for special reasons, otherwise permits.

(2) When an auctioneer or house agent receives money for a client, he shall, without unnecessary delay, pay it into a client account unless the money—

(a) is received in the form of cash and is paid without unnecessary delay in cash to the client;

(b) is received in the form of a cheque or other negotiable instrument which is endorsed over and delivered without unnecessary delay to the client;

(c) is paid without unnecessary delay into a separate banking account in the name of the client or some person (not being the auctioneer or house agent or a partner, employee or agent of the auctioneer or house agent) named by the client or into a joint banking account in the names of the auctioneer or house agent and the client; or

(d) is invested by him at the written request and for the benefit of the client, in a manner in which it is for the time being lawful for a trustee (unless expressly forbidden) to invest trust funds.

(3) Where an auctioneer or house agent holds or receives a cheque or draft which includes money for a client, he shall, if practicable, apportion the cheque or draft and pay into the appropriate client account the portion representing the money for the client as if he had received a separate cheque for that amount and, if such apportionment is not practicable, he shall pay the cheque or draft in full into the client account and, where he has so paid the cheque or draft in full into the client account, he may withdraw therefrom the money that is not money for a client.

(4) No payment other than money for a client shall be made into a client account save such payment as is authorised to be made under subsection (3) or is necessary in order to open or maintain the account or to replace any sum drawn from it by mistake or accident.

(5) Money shall not be withdrawn by an auctioneer or house agent from a client account unless—

(a) it is properly required for a payment to or on behalf of a client whose money is in that account, or

(b) it is properly required for or towards payment of fees or commission due to the auctioneer or house agent by a client whose money is in that account, or for or towards reimbursement of expenses incurred by the auctioneer or house agent in connection with the client's business or of money paid to a client by the auctioneer or house agent out of his own funds (either in the circumstances specified in subsection (10) or otherwise to facilitate prompt payment of the client), or it is a withdrawal authorised by subsection (3).

(6) A withdrawal under subsection (5) (b) shall be made by either—

(i) a cheque drawn in favour of the auctioneer or house agent, or

(ii) a transfer to a bank account (not being a client account) in the name of the auctioneer or house agent.

(7) Where an auctioneer or house agent withdraws money from a client account—

(a) unless the withdrawal is being made by a cheque drawn in favour of a client, the auctioneer or house agent shall endorse on the cheque, withdrawal docket or draft requisition form the words “Fees in respect of” or the words “Outlay in respect of” or (where a payment is being made to a third party) the words “On behalf of” or (in any case) such other words as will explain the nature of the withdrawal, followed in every case by the name of the client;

(b) he shall preserve the cheque or draft when returned by the bank for as long as he is required by section 4 to preserve the corresponding account.

(8) (a) Money withdrawn from a client account for or in respect of a client shall not exceed the total of the moneys held for the time being in that account on account of that client.

(b) Money withdrawn from a client account for or towards reimbursement of money paid to a client by the auctioneer or house agent out of his own funds shall not exceed the amount paid to the auctioneer or house agent in respect of the corresponding transaction on behalf of that client and properly available in the client account for the purposes of such reimbursement.

(9) (a) If it appears to the Minister for Justice that the provisions of this section are inadequate to prevent the negligent or fraudulent handling of money for a client or are otherwise insufficient to protect the interests of clients and that other provisions (either in substitution for or in addition to the existing provisions or any of them) governing the payment of money into and the withdrawal of money from client accounts would be in the public interest, he may make regulations incorporating such other provisions.

(b) Regulations under paragraph (a) may provide that, in circumstances specified in the regulations, being circumstances in which an auctioneer or house agent is required by or under this section to pay money into a client account, the auctioneer or house agent shall either—

(i) pay the money into an interest bearing client account and pay the interest to the client or other person to whom the money belongs, or

(ii) pay to the client or other person to whom the money belongs the sum equivalent to the interest that would have been earned if the money had been paid into such an account.

(c) Regulations under this subsection shall not come into operation until a period of not less than one month has elapsed from the date on which they were made.

(d) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which the House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to anything previously done thereunder.

(10) For the purposes of subsections (1) to (4) references to money for a client include references to money paid to an auctioneer or house agent, being all or part of the purchase-price of property sold by him for a client or of the rent or other return in respect of property let by him for a client or being a payment otherwise intended for a client, where the auctioneer or house agent, in anticipation of the receipt of such money, has out of his own funds already paid the client.

6 Priority of claims to clients' moneys.

6.—Where an auctioneer or house agent keeps a client account, neither the State nor any person shall have or obtain any recourse or right against moneys standing to the credit of that account in respect of a claim or right against the auctioneer or house agent until all proper claims of his clients against those moneys have been fully satisfied.

7 Vesting in Official Assignee of sums to credit of certain client accounts.

7.—(1) (a) Where an auctioneer or house agent is adjudicated bankrupt or where, being an arranging debtor, he vests his estate in the Official Assignee for realisation anddistribution amongst his creditors, then, notwithstanding anything contained in section 6 or in any other enactment, there shall vest in the Official Assignee the sum to the credit of every client account kept by that auctioneer or house agent.

(b) Where an auctioneer or house agent files a petition for arrangement but does not vest his estate in the Official Assignee, the creditors who are clients, or a section thereof (being at least three-fifths in number and value of those who, as clients, have proved debts to the amount of £20) may apply to a judge of the High Court for the time being exercising jurisdiction in bankruptcy matters for an order vesting in the Official Assignee the sum to the credit of every client account kept by the auctioneer or house agent, and the judge may, if he thinks it proper to do so and the Official Assignee consents, make such an order, which shall have effect accordingly.

(2) Upon a vesting under subsection (1) (whether by virtue of paragraph (a) thereof or of an order under paragraph (b) thereof) in the Official Assignee—

(a) the rights of creditors against the deposit maintained in the High Court shall vest in him and no order shall thereafter be made under section 11 (3) (b) in relation to the deposit;

(b) he shall notify the Accountant of the vesting;

(c) notwithstanding that an order in respect of any such client account may have been under section 11 (4), a banking company shall be entitled to pay over to him the sum to the credit of that account and shall pay over that sum to him upon demand by him;

(d) he shall proceed to administer the client account or accounts for the benefit of the clients and the law of bankruptcy (including this Act) shall apply to such administration.

(3) The administration under subsection (2) of a client account by the Official Assignee shall for all purposes be deemed to be business assigned to the Office of the Official Assignee in Bankruptcy and transacted therein.

8 Provisions relating to client accounts in event of bankruptcy.

8.—(1) Where—

(a) an auctioneer or house agent is adjudicated bankrupt, files a petition for arrangement, executes a deed of arrangement (within the meaning of section 4 of the Deeds of Arrangement Act, 1887) or dies insolvent, or

(b) a company licensed as an auctioneer or house agent is insolvent and being wound up,

the Official Assignee (in a case where section 7 applies), the liquidator (in the case of an insolvent company) or any interested person (in any other case) may apply to the High Court by motion for an order under subsection (2).

(2) (a) The High Court, on application made to it under subsection (1), may make an order directing that—

(i) the costs, fees and expenses incurred by or payable to the Official Assignee in connection with the client account or (as may be appropriate) such costs and expenses in connection with the client account of the liquidator or other interested person as the court may allow, and

(ii) the amount of any deficiency in a client account,

shall, to such extent as the money available allows, be paid or made good by the Accountant either out of the deposit maintained in the High Court under the Principal Act, or, in a case where the deposit consists of a guarantee bond, from money made available by the assurance company concerned on foot of the bond; and, for the purpose of enabling the Accountant to comply with such direction, the order or a further order may direct, in a case where the deposit consists of securities, the sale by the Accountant of such securities (or of as much thereof as may be necessary) and, in a case where the deposit consists of a guarantee bond and notice of the application has been served on the assurance company concerned, the payment by the assurance company of the amount of the bond (or of as much thereof as may be necessary): provided, however, that such order shall have effect subject to the provisions of any order previously made in relation to the deposit under section 11 (3) (b) unless the High Court directs otherwise.

(b) Where there is a deficiency in more than one client account, the amount available from the deposit towards making good the deficiencies may be paid over under paragraph (a) without apportionment between the client accounts.

(c) The High Court, when making an order under this subsection directing the sale of securities, may in the same order direct the sale of all such securities maintained as a deposit in the High Court by the auctioneer or house agent and the transfer to the Official Assignee, for the benefit of the ordinary creditors, of any surplus that may remain after the payment of any costs, fees and expenses and the making good of any deficiency in a client account.

(d) The provisions of section 15 (3) of the Principal Act shall apply to an order under this subsection.

(3) Where—

(a) (i) an auctioneer or house agent is adjudicated bankrupt, files a petition for arrangement, executes a deed of arrangement (within the meaning of section 4 of the Deeds of Arrangement Act, 1887) or dies insolvent, or

(ii) a company licensed as an auctioneer or house agent is insolvent and being wound up,

and

(b) there is, notwithstanding the addition of the sum paid over under subsection (2), a deficiency in the client account or accounts,

then, notwithstanding any rule of law to the contrary, the sum to the credit of the said client account or, where the auctioneer or house agent has kept two or more client accounts, the total of the sums to the credit of those accounts, shall (after the addition thereto of the sum paid over under subsection (2)) be divisible proportionately amongst the clients of the auctioneer or house agent according to the respective sums received by the auctioneer or house agent in the course of his business on behalf of his clients and remaining due by him to them.

(4) A person, other than the Official Assignee, who is entitled and proposes to apply to the High Court under subsection (1) may before such application and by motion ex parte apply to the Courtfor an order prohibiting the payment of any money out of the deposit or, in a case where the deposit consists of a guarantee bond, from money made available by the assurance company concerned on foot of the bond, pending the hearing of the application under subsection (1), and the Court may, if it thinks fit, order accordingly.

(5) For the purposes of this section, in a case where a refund of a deposit is due the amount due shall be deemed to have been received by the auctioneer or house agent in the course of his business on behalf of the person who made the deposit: provided, however that this section shall not so operate as to deprive such a person of any right to require the contract of sale or letting to be duly completed.

9 Preservation of lien and other rights.

9.—Nothing in this Act shall so operate as to deprive an auctioneer or house agent of any recourse or right (whether by way of lien, set-off, counter-claim, charge or otherwise) against moneys standing to the credit of a client account.

10 Provisions regarding banking companies.