There are a number of consequential amendments to amendment No. 1 — amendments Nos. 4, 5, 6, 13 and 17. Perhaps they might be discussed together.
Auctioneers and House Agents Bill, 1966: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 2, after line 15, to insert the following:
" 'client' includes (unless the context otherwise requires) a person to whom a refund of a deposit is due;".
This is a drafting amendment. Its object is to transfer to the definition section the references to the meaning of "client" that are now to be found in the body of the Bill. I think that the other consequential deletions which follow from this throughout the Bill are obvious enough to the House. I think it will make it easier to understand the Bill if you have these provisions set out in the definition section.
On Second Reading, I made the point that there did not seem to be any definition of "client" in the Bill. I still think that this is so. In the explanatory memoranda issued in connection with the amendment, there is a reference to transferring to the definition section references to the meaning of "client" that are to be found in the body of the Bill. That is right. There are references in the body of the Bill, but, to my mind, none of the references is such as to constitute a definition of "client". We are told in different places throughout the Bill that such and such a person shall be deemed to be a "client". One could go on endlessly, deeming this, that and the other to be clients, if one does not put down a definition of client in the Bill. The Minister proposes to remedy that by including in the definition the words "client includes, unless where the context otherwise requires, a person to whom a refund of the deposit is due". With respect, I do not think that is sufficient if it is to be taken as a definition.
It is not really a definition.
I submit there should be a definition in the Bill of what we mean by "client". I want to put this point of view to the Minister. As a result of the amendment, and indeed in the Bill as it stood, there were different types of cases where the person was to be deemed to be a client of the auctioneer, a person to whom refund of a deposit is due. Largely, it is true to say that the meaning of the word "client" is associated with the holding by the auctioneer of a deposit. My colleague, Deputy Flanagan, will correct me if I am wrong in this. I think an auctioneer is entitled, and I should be greatly surprised if he were not, from time to time to do work on a commission basis which might not be associated directly with the purchase or sale of property.
For example, auctioneers may be approached for the purpose of finding a person who is prepared to invest money in a venture. An auctioneer may be commissioned by a person who would be a client to expend money for that person in a particular way. All these cases should be covered by the definition of client in the Bill. If there is an obligation being imposed by the Bill on an auctioneer to pay deposits paid to him into a bank account which has to be designated as a client bank account, moneys sometimes may be paid to an auctioneer which are not intended in discharge of fees or commission or expenses but which are paid by a person on account of some particular transaction either for the person himself or someone else — I take it this would be the desire of the Auctioneers' Association—and they should be covered by the provisions of this Bill and paid into the client account.
On Second Reading, I made clear my attitude, saving that I regard this measure by and large as the measure of the Auctioneers' Association, the measure which they want, and I do not regard it in any way as being controversial. However, I think we should look at it carefully to make sure we shall not run into snags. One of the snags I foresee is the absence of a comprehensive definition of client. As I pointed out on Second Reading, in the Solicitors' Accounts Regulations, from which a large part of the inspiration for this Bill seems to have been drawn, one of the first things done is to define who is a client.
I should like to add a few words to what Deputy O'Higgins has stated. Perhaps the Minister will avail of this opportunity to make this very clear. If a client is a person to whom a deposit is to be refunded or made payable, the Minister must bear in mind that auctioneers handle numerous sums of money other than deposits. We want to make sure that the Bill covers not alone deposits on sales of land or house property or whatever the auctioneer may be handling. An auctioneer also handles substantial amounts of money in respect of farm clearance sales, furniture auctions, meadow sales, meadow lettings, conacre lettings and grazing lettings. If the auctioneer is to account for his clients' money in reference to deposits which he holds, surely it is the intention of the Minister and of the Bill — I can assure the Minister it is the intention of the Auctioneers' Association—that all moneys handled by the auctioneer in discharge of his duties as auctioneer must be covered by the Bill because the intention behind the Auctioneers' Association in asking for this measure was primarily to protect and safeguard the public.
If the auctioneer is to account for the deposits which he holds on behalf of his clients surely the Bill should also cover all moneys, for whatever purpose they are received, because if the auctioneer is to keep proper records he must include the proceeds of clearance sales, furniture sales, meadow, grazing and conacre lettings. Auctioneers have separate registers which contain all the transactions in relation to meadow sales and lettings, conacre lettings, furniture sales and so forth. He has one register for each type of business. On inspection, I presume the auditor will wish to inspect these separate registers. In such an inspection it will become evident that not only has the auctioneer substantial sums which he holds in trust for his clients but in addition he will have in his client bank account various sums in connection with clearance sales, furniture sales, meadow sales and lettings, conacre and grazing lettings. On occasions he may also have a record of the work he has performed as a valuer. That work will naturally involve only the auctioneer's own money because in his capacity as a valuer he renders services for which he is paid and once he has rendered the service he is entitled to payment. The amount he receives as a valuer will be his own money and will be lodged in his own personal account.
Therefore, I trust the Minister will make it clear in relation to the moneys which are with the auctioneer in safe keeping, in trust for his client, that they are covered by this measure — that the funds he holds in this way will be covered and described in the Bill as clients' moneys. They are not the auctioneer's moneys. They are moneys which he has for the time being on behalf of the person to whom he is rendering a service, and such a person is described in this Bill as a client. Therefore, apart from the deposit, he has these other miscellaneous sums of money which I presume are also covered in this Bill.
Deputy Flanagan's presumption is correct. This whole matter could possibly be dealt with by referring to amendment No. 3, although we are not considering it now. We will be considering it in greater detail later on. Amendment No. 3 deals with section 5 (10) (b) which reads:
(b) 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 money has not passed to a client.
We are transferring that by amendment No. 3 which is not properly before us.
It is fair to consider it in relation to what Deputy Flanagan has been talking about. I do not think it goes far enough. In the case Deputy Flanagan spoke about of an auctioneer who is conducting a furniture sale, he might get a deposit when it is knocked down. The purchaser the following day or that evening will certainly pay the auctioneer the total. There is no question of a deposit having been paid by the auctioneer's client. The client is the person for whom he is selling.
If the House would look at amendment No. 3 they will see that it is fairly global. In effect it will delete the matter referred to in section 5 (10) (b) and substitute a new subsection which states:
"(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."
Surely we are including lettings. Lettings of land and meadowings form a very important part of an auctioneer's business. Surely the Minister knows that in the case of a grazing letting, once the client has signed the agreement for the grazing letting half of the money is paid down, and on whatever date is specified in the conditions of sale — be it 1st October of the following year or 1st November of the following year — the remaining half is paid. Half of the agreed sum is deposited with the auctioneer on behalf of the vendor. The vendor is the person who sets the grazing. I presume that even though it is not covered in this amendment we may take it that moneys which are in the hands of the auctioneer for lettings of conacre and grazing will also be included here.
Lettings are covered by the word "renting". "Renting" is the legal phrase covering lettings.
It does not cover the case where the purchaser pays the entire amount to the auctioneer on buying furniture at a furniture auction. There is no question of a deposit there. Amendment No. 1 also refers to a deposit. This is more restrictive because it refers only to the refunding of a deposit where a deposit is paid back to the person who made it. It does not seem to refer to a case where a deposit is released and paid ultimately to the vendor.
Amendment No. 3 says:
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.
There is nothing exclusive about amendment No. 3. It does not exclude the possibility mentioned by the Deputy.
I am suggesting that it leaves quite a lot in the air.
The difficulty about getting an all-inclusive definition in regard to a matter such as this is quite substantial.
The Minister has the Solicitors' Calendar in his hand. If he reads the definition there he will find it is fairly full.
No, it is hardly adequate for our purposes. Under the solicitors' regulations which I have before me—this is not in the actual Act——
It is a statutory regulation.
——a client means any person on whose account a solicitor holds or receives clients' money.
That is allembracing.
I should prefer to leave it open. We know who the auctioneer is. He is the person who takes commissions from a client, and a client is a person on whose behalf he takes commissions and executes them. For the purposes of the Act we set out specifically the duties he has in regard to moneys he holds on behalf of a client. I would suggest that between amendment No. 1 and amendment No. 3 we meet the specific point made by Deputy Flanagan in that we define in amendment No. 1 that " `client' includes (unless the context otherwise requires) a person to whom a refund of a deposit is due". In amendment No. 3 by using the words "purchase or renting of property" we cover the other type of case, including both sale and letting, with which Deputy Flanagan is concerned. Perhaps I could look into the matter between now and Report Stage with a view to having a more positive definition of "client".
I do not want to be obstructive in any way but it seems to me that in many ways this is the kernel of the Bill, because all the arrangements envisaged in the Bill relate to the regulation of the auctioneer's affairs in relation to clients' money. The requirements regarding the keeping of accounts and the lodging of clients' money in a clients' account in the bank, depend on who is the client. The Minister refers to amendments Nos. 1 and 3. I take it we can discuss them together. That seems to be the sensible thing to do.
Amendment No. 1, as I pointed out —I doubt if it is intentional, I think it possibly was not intended at all—on any strict interpretation can be taken only as referring to money which is going to be refunded to the person who paid it. Normally speaking, that is not the way that business will be done. Let us take an example in relation to a deposit lodged with an auctioneer. I am buying a house for which Deputy Flanagan has the sale as the auctioneer. For the purposes of the example the Minister is the vendor. I pay a deposit to the auctioneer and ultimately when the deal is closed that deposit will not be refunded to me by Deputy Flanagan. It will be released to the Minister who is the vendor. A question of a refund does not come in. There is no refund for me. It is never intended that there should be a refund to me except in a case where for some reason the deal falls through. I am entitled to get my deposit back. In fact, strictly speaking amendment No. 1 would cover only cases where the deal falls through and the deposit has to be refunded. Then you go to amendment No. 3. As the Minister said, amendment No. 3 is not exclusive. It sets out to include specific cases in the definition of "client". It says that references in this Act to money for a client include ... unless where the context otherwise requires references to a deposit. It is quite clear, when we get to that stage, that this refers to money which is paid by means of a deposit only and not to any other money.
"... or otherwise paid to him in connection with the purchase or renting of property...."
But that is qualified by "stakeholder or otherwise...." It is all governed by "deposit", both in amendment No. 1 and in amendment No. 3. The money referred to is the deposit, not other money. Amendment No. 3 reads:
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....
The "otherwise" there means otherwise than as a stakeholder. It does not mean money, other than a deposit, paid to him. Under amendment No. 3, it must be paid to him "in connection with the purchase or renting of property where a right to the money has not passed to a client". It is further limited to cases where "a right to the money has not passed to a client". Again, as I say, with a deposit you are dealing with a deposit which is paid to the auctioneer in connection with the purchase or renting of property. You are not dealing with a case where no deposit is paid but where the entire is paid. You are not dealing with a case where, for example, (1) the deposit has been paid and (2) the balance of the purchase money has been paid to the auctioneer. In that case, under these two amendments, the auctioneer is required, under the definitions here — under this Act, anyhow — to deal only with the deposit. As regards the balance of the purchase money, he is not obliged to lodge it in a client account in the bank, and so on. The Minister should have a closer look at it.
If "or other moneys" were added after "References in this Act to money for a client include (unless the context otherwise requires) references to a deposit....", that would meet substantially what Deputy O'Higgins is suggesting.
If the Minister looks at his amendment now on section 1, he will see that " `client' includes (unless the context otherwise requires) a person to whom a refund of a deposit is due." What does the Minister mean by "a refund of a deposit"? Deputy O'Higgins is quite right. You do not refund a deposit unless the sale falls through.
Yes, that is what is involved. That is what may be involved. We are talking about the deposit here. "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." I am looking now at amendment No. 3. This must be considered in connection with amendment No. 1: that makes it much clearer. If the Deputy reads amendment No. 3, he will find that it meets substantially the points made by the Deputy. "Renting" covers letting and——
Is the Minister quite satisfied that "renting" covers letting?
Undoubtedly; there is no question about it.
All right.
I agree that the Minister should take the two together but amendment No. 1 sets out — putting it broadly — to define "client" and amendment No. 3 sets out — again putting it broadly — to define a client's money.
Even in our Solicitors Act, we did not attempt to define "client" or "client's money". On page 148 of the Handbook of the Incorporated Law Society of Ireland, 1964, we read:
"Client" means any person on whose account a solicitor holds or receives client's money;
"Client's money" means money which a solicitor receives as a solicitor or agent or in connection with his practice as a solicitor on account of some other persons, but does not include, (a) money to which he is, or in the case of a firm, one or more of the partners are, alone entitled; or (b) money held or received on account of a trust of which the solicitor is a solicitor-trustee.
One can go too far in the matter of definition.
I am not patting the solicitors' profession on the back but I think one would find it difficult to better those two definitions in the Solicitors Act. I think they could be adapted to meet the case here very well. Can the Minister, offhand, think of an exception to "client" or "client's money" to which he has just referred? I cannot.
It is undesirable precisely to define "client" or "client's money" in a Bill of this kind. It would be better to say that it includes what Deputy Flanagan——
All the money an auctioneer receives, except commission.
This is the purpose.
I do not think it does it. However, the Minister said he would look at it again.
The intention of the Bill is to cover the transactions of the auctioneer.
That is the purpose, if Deputies will read amendment No. 3 with amendment No. 1. Amendment No. 1 reads:
In page 2, after line 15, to insert the following:
" 'client' includes (unless the context otherwise requires) a person to whom a refund of a deposit is due;".
Amendment No. 3 reads:
In page 2, after line 31, to insert the following new subsection:
"(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."
The real difference is Deputy O'Higgins's point. He says that this refers only to deposit and does not cover moneys paid to an auctioneer by a client, other than deposit, where the full price is paid to the auctioneer by a client.
Amendment No. 1 refers only to refund of a deposit and amendment No. 3 refers only to deposit.
My suggestion is that if we add there, after "deposit", in each of these two amendments "or other moneys"——
That would certainly meet it. In amendment No. 3, I think reference should be made to the purchase, sale or renting of property.
Yes, that would seem more embracing.
At the moment it seems to imply that the auctioneer is possibly being asked to purchase property for a client.
I think that would tighten it up.
Between now and the Report Stage, I shall look into the question of inserting "sale" in amendment No. 3 and "or other money".
Amendment agreed to.
I move amendment No. 2:
In page 2, between lines 19 and 20, to insert the following definition:
" 'company' means a company within the definition contained in the Companies Act, 1963;".
What is the definition of "Companies Act"? Can the Minister say what it is, offhand?
To tell the truth, I cannot.
I take it that it is defined?
It is, in the relevant Act.
This is the relevant Act. However, it is clear what is meant.
Amendment agreed to.
I move amendment No. 3:
In page 2, after line 31, to insert the following new subsection:
"(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."
This is the one we have really been discussing.
It is agreed, on the same basis.
Yes.
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 4, inclusive, agreed to.
SECTION 5.
I move amendment No. 4:
In page 4, lines 20 to 23, to delete "or for or towards a refund of a deposit paid to the auctioneer or house agent as a stakeholder or otherwise paid to him in connection with the purchase or renting of property".
This amendment was discussed with amendment No. 1.
Amendment agreed to.
I move amendment No. 5:
In page 4, lines 44 to 46, to delete "or of a person who has made a deposit in the circumstances specified in subsection 10 (8)".
Amendment agreed to.
I move amendment No. 6:
In page 5, to delete lines 8 to 12.
This amendment was discussed with amendment No. 1.
Amendment agreed to.
I move amendment No. 7:
In page 5, line 56 to delete "and", and to delete lines 57 to 60.
Did we do that, as well?
It is consequential.
Yes, it is consequential on amendment No. 3.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
I should like to ask the Minister if he considered the question of the restriction imposed on the auctioneer that he will have to keep all his accounts in the same bank?
Yes, I looked at that. First of all, there is nothing to prohibit the auctioneer from keeping them at different branches of the same bank, and this practice is often adopted, but on the face of it opening client accounts in different banks may, as a prima facie issue, be suspicious.
I hope not.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
This is not affected, is it, by amendment No. 18?
No, it is not, although it is near the same line of country, the bankruptcy aspect.
Question put and agreed to.
SECTION 7.
With amendment No 8, perhaps we could discuss amendments Nos. 14 and 16 which are cognate.
I move amendment No. 8:
In page 6, line 4, to delete "a".
This is a small drafting amendment. Although there is no hard and fast rule about it, I am told "adjudicated bankrupt" is preferred to "adjudicated a bankrupt". That is the net point.
A bankrupt is a person who has been adjudicated bankrupt.
Yes.
Amendment agreed to.
Amendment No. 9, and perhaps we could take amendments Nos. 10, 15 and 18, which are consequential with it.
I move amendment No. 9:
In page 6, lines 30 and 31, to delete "section 15 of the Principal Act" and substitute "section 11 (3) (b)".
The substantive amendment here is No. 18. The others, 9, 10 and 15, are really incidental to that end and therefore I would direct the attention of the House to amendment No. 18 which is really the nub of the issue. This amendment proposes to replace subsections (1) and (2) of section 15 of the 1947 Act governing the payment of claims out of the deposit, and also section 11 of the Bill, governing the freezing of bank accounts. This is what Deputy O'Higgins was thinking about a few minutes ago. It is not just a straightforward replacement because it also proposes another addition in order to provide a more equitable distribution of the available assets if an auctioneer gets into difficulty.
As matters are at present, if word gets out that an auctioneer is in such a position, those who are well advised can rush in with their application to the court as soon as possible and it is roughly a case of first come first served. The person who is in first in the High Court can get the whole deposit even though another person may apply a few minutes later and this second person would be left with nothing. This has resulted in inequities in the past and it is a situation I should like to remedy in this Bill. The amendment is designed to put an end to this type of scramble and it means that when a claim is made the judge will inquire whether it is likely that there will be another claim. If the answer is "yes" he will not allow any claim until the situation has been clarified.
The amendment also provides that a judge may, at his discretion, proceed to adjudicate the auctioneer bankrupt. The deposit, of course, is with the High Court so that the High Court judge has jurisdiction in this aspect. It is fair to leave this discretion to him. It may appear wide but it is fair to leave it to the judge before whom the application is made. By giving him this discretion we get rid of the situation which we had heretofore where, as I said, a client could collar all of the available deposit. It is far more important that the High Court judge should freeze any dealings which would be affected and ensure that there will be fair and equitable distribution of the deposit among all creditors who properly make a claim before the court.
That is as it should be in order to safeguard all claimants.
This is an improvement of the present position as the Minister has pointed out. The position obtaining now is that it is very much a case of first come first served but not only have you to keep in front throughout the race but get to the winning post first. It puts the solicitors in a particularly difficult position if any of these cases arise in that they have to be very careful that they do not lose a day at any of the jumps, whether it be Beechers or any of the others, and they have to go right up to the finish to get there first. The only thing I would query — and I do not know whether this can be overcome and at the same time try to mete out equal treatment to all creditors — is the possibility of unnecessary delay, that is delay which subsequently proves to be unnecessary, occurring in relation to the claim of an applicant. I have in mind a case where it transpires that no other claims are advanced but where the position might have been uncertain when the initial application is made to the court and the court decides that what it will do is freeze the auctioneer's bond or deposit. Then the person who has brought the application has to wait until it has been ascertained whether or not other claims are going to come in. Ultimately it may be found there are no other claims and he is going to get his money.
I do not know what delay is likely to ensue between his application and payment being made to him in that kind of case but in some cases this question of delay can be of considerable importance to the person waiting for his money. I do not know how the Minister could effectively deal with this kind of case and at the same time ensure the type of equal treatment which he desires for all applicants. In regard to the discretion of the court to adjudicate the auctioneer bankrupt, I can see, for the reasons mentioned by the Minister and those set out in the explanatory memorandum, it is desirable to have that discretion vested in the court. I am not entirely clear — perhaps the Minister would fill in the picture for me — whether under the amendment the court requires to have the same type of evidence to support the adjudication of the auctioneer as being bankrupt as he would if a petition for bankruptcy were filed by a creditor. In other words, will the court require proof of commission of an act of bankruptcy or can the position obtain under this amendment, if it becomes law, that the court can adjudicate the auctioneer bankrupt when, in fact, no insolvency existed and when the position would be that when under the existing law there were no circumstances in which the auctioneer could have been declared bankrupt in the event of someone initiating bankruptcy proceedings?
I can see the necessity for protecting the estate for the benefit of creditors but it would not seem to be desirable under any circumstances that we should carry into our legislation authority for any court to declare a person bankrupt when the person is not, in fact, bankrupt. If that position were likely to come about under the amendment, I think it would be preferable to veer off that track slightly and while giving the court power to freeze the bond or the deposit, also give the court authority to appoint a creditors committee or a liquidator without taking the formal step of declaring the auctioneer bankrupt.
I think what the Deputy is concerned about is contained in an amendment of section 11 (6) (a):
In addition to or in lieu of an order under subsection (4) the Court, notwithstanding anything contained in the law of bankruptcy or the law relating to companies, may, of its own motion and after giving to the defendant, and to any person to whom it considers it reasonable to give notice, such notice as it considers reasonable, by order adjudicate him bankrupt or, if the defendant is a company, make an order for its winding up and for the appointment of the Official Assignee as liquidator.
It will be for the court then to assess the position and notify the auctioneer. If the auctioneer wants to go through the whole bankruptcy procedure otherwise that is a matter for himself but he will have full notice of what the court proposes to do before the court can make the order envisaged by the section. To that extent he will not be prejudiced.
Would the Minister repeat that?
The auctioneer will not be prejudiced. Under the amendment. The defendant will get full notice.
He will get such notice as the court thinks reasonable.
He will get notice from the court before there is any order adjudicating him bankrupt.
And can prove he is not bankrupt if that is so?
Yes.
Amendment agreed to.
I move amendment No. 10:
In page 6, line 34, to delete "section 11" and substitute "section 11 (4)".
This was already discussed.
Amendment agreed to.
I move amendment No. 11:
In page 6, lines 39 and 40, to delete "according to the law of bankruptcy" and substitute "and the law of bankruptcy (including this Act) shall apply to such administration".
Amendment agreed to.
I move amendment No. 12:
In page 6, to delete lines 41 to 45.
Amendment agreed to.
I move amendment No. 13:
In page 6, to delete lines 50 to 52.
This was already discussed.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
I move amendment No. 14:
In page 6, line 54, to delete "a".
Amendment agreed to.
I move amendment No. 15:
In page 7, lines 30 and 31, to delete "section 15 (1) or 15 (2) of the Principal Act" and substitute "section 11 (3) (b)".
Amendment agreed to.
I move amendment No. 16:
In page 7, line 49, to delete "a".
Amendment agreed to.
I move amendment No. 17:
In page 8, to delete subsection (5) and substitute the following:
"(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."
Amendment agreed to.
Section 8, as amended, agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
I take it that the phrase "banking companies" is defined somewhere, in the Central Bank Act or something like that?
We have "bank" defined here in this Bill but we have not got banking companies defined.
Question put and agreed to.
NEW SECTION.
I move amendment No. 18:
In page 8, before section 11, to insert the following new section:
(1) Whenever a person (in this section referred to as the plaintiff) has —
(a) obtained in any proceedings a judgment, order or decree, or
(b) instituted proceedings,
against any other person (in this section referred to as the defendant) for (or, in the case of proceedings instituted, involving a claim for) payment of money in discharge of a liability incurred or alleged to have been incurred by the defendant as an auctioneer or house agent in relation to the receipt or payment of money or the safe custody of property, the plaintiff or any client of the defendant may by motion ex parte apply to the High Court for an order under subsection (3).
(2) (a) A person who may make an application under subsection (1) shall, on satisfying the registrar or clerk, as the case may be, of the court in which the judgment, order or decree mentioned in that subsection was obtained or the proceedings mentioned in that subsection were instituted that he proposes to make the application, be entitled to obtain a certificate signed by the registrar or clerk that a judgment, order or decree as aforesaid has been obtained or that proceedings as aforesaid have been instituted, as the case may be, against the defendant.
(b) A certificate under paragraph (a) shall be evidence of the facts stated therein.
(3) Where an application is made under subsection (1), the following provisions shall have effect, namely:
(a) in any case, the Court may by order direct that the deposit maintained in the Court under the Principal Act be not released during such period as to the Court may seem proper;
(b) in a case where the application is made by a plaintiff who has obtained a judgment, order or decree and it appears to the Court, after such enquiry as it deems appropriate, either —
(i) that it is unlikely that further claims will be made against the deposit in respect of sums then owed by the defendant, or
(ii) that, if such claims are made, the deposit is sufficient to meet them in full,
the Court may by order direct that the sum specified in the judgment, order or decree (as the case may be), with or without the costs of the application, shall be paid to the plaintiff out of the deposit or, if the deposit consists of a guarantee bond and notice of the proceedings or of the intention to institute the proceedings has been served before the hearing on the assurance company concerned, shall be paid to the Accountant on behalf of the plaintiff.
(4) Where an order has been made under subsection (3) (a) the Court may also make an order directing either —
(a) that no banking company shall, except on such conditions or in such circumstances as may be specified in the order, make any payment out of any banking account in the name of the defendant, or
(b) that a specified banking company shall not, except on such conditions or in such circumstances as may be specified in the order, make any payment out of any banking account or out of a specified banking account or type of account kept by such company in the name of the defendant.
(5) Where —
(a) an order has been made under subsection (3) (a) on the application of a plaintiff who has obtained a judgment, order or decree, or
(b) an order has been made under subsection (4),
the defendant shall, for the purposes of the law of bankruptcy, be deemed to have committed an act of bankruptcy on the date of the making of the order or, if the defendant is a company, shall, for the purposes of the law relating to companies, be deemed to be unable to pay its debts.
(6) (a) In addition to or in lieu of an order under subsection (4), the Court, notwithstanding anything contained in the law of bankruptcy or the law relating to companies, may, of its own motion and after giving to the defendant, and to any person to whom it considers it reasonable to give notice, such notice as it considers reasonable, by order adjudicate him bankrupt or, if the defendant is a company, make an order for its winding up and for the appointment of the Official Assignee as liquidator.
(b) Where the Official Assignee is appointed liquidator under paragraph (a) —
(i) the provisions of sections 228 (a) and 228 (d) of the Companies Act, 1963, shall not apply to him.
(ii) notwithstanding anything contained in section 6 or in any other enactment, there shall vest in him the sum to the credit of every client account kept by the company and the provisions of section 7 (2) shall apply as if the vesting were under section 7 (1),
(iii) the exercise of his powers and the performance of his duties as liquidator (including the administration of a client account) shall for all purposes be deemed to be business assigned to the Office of the Official Assignee in Bankruptcy and transacted therein.
(7) Where a defendant is adjudicated bankrupt under this section, the law of bankruptcy (including this Act) shall apply in the same way as if the defendant had been adjudicated bankrupt on a petition of bankruptcy under that law and as if for any reference in that law to the presentation or filing of a petition of bankruptcy there were substituted a reference to the making of the order of adjudication under this section.
(8) Where, in a case where the defendant is a company, a winding up order is made under this section, the law relataing to companies (including this Act) shall apply in the same way as if the order had been made on a winding up petition under that law and as if for any reference in that law to the presentation of the winding up petition there were substituted a reference to the making of the winding up order under this section.
(9) An order under subsection (3) (a) or under subsection (4) may be revoked or varied by the High Court.
(10) The whole or any part of proceedings under this section may be heard in chambers.
(11) Rules of the Superior Courts may provide for adaptation of the law of bankruptcy, the law relating to companies and any procedure to such extent as may be necessary to implement this section.
(12) The reference in section 15 (3) of the Principal Act to an order under that section shall be construed as a reference to an order under subsection (3) (b) of this section.
(13) Sections 15 (1) and 15 (2) of the Principal Act are hereby repealed.
This amendment was discussed with amendments Nos. 9, 10 and 15.
Amendment agreed to.
Section 11 deleted.
SECTION 12.
I move amendment No. 19:
In page 10, to delete line 19 and substitute the following:
"(iii) that, in relation to the business of auctioneer or the business of house agent (as the case may be) and any other business in which he may be engaged, he is solvent."
This is one of a group of clarifying amendments that have been suggested by the Institute of Chartered Accountants.
We are dealing here with an auctioneer who has fallen down in the matter of keeping proper records, as required by the Bill. He has to satisfy the court that, although he has failed in some respect to observe the statutory requirements relating to the keeping of records and of separate accounts, he has now mended his ways and that nobody has suffered loss. He is also required to satisfy the court that he is solvent and the amendment makes it clear that solvency in this context covers all his business affairs and not just that his client accounts are now in order. This deals with the auctioneer who is going back to the court to renew his licence and the requirements we are now placing on him in respect of which he must satisfy the court before having his licence renewed.
How often can this happen? Suppose we have an auctioneer who slips up occasionally. Will the court tolerate frequent failure to keep records or proper accounts? Will the court take the auditors' certificate into consideration in granting a licence on all occasions?
This is what they must take into account. It is one of the main purposes of the Bill to make an accountant's certificate a sine qua non before the licence is granted.
I was not too happy about this when I first read it because I thought it could be a means of driving a coach and four through the whole Bill, that a way out was being given for the person who might otherwise not fully comply with the provisions of the Bill and that this might enable him to get a certificate from the auditor which he might not fully deserve. I do not suggest that the auditors will give a certificate unless they are fully and completely satisfied that separate accounts are kept and that the accounts are accurate but the Minister said that this amendment is being put in at the request of the accountants' association — is that not right?
Yes, and the next one also which is probably more relevant to what the Deputy is saying.
Can the Minister say for what purpose did the accountants' association recommend these amendments to him? Can he give us an outline of where they were necessary? I thought the Bill was much stronger and more favourable to the auctioneers without this amendment. Does the Minister say that this amendment is really necessary? Is he quite satisfied that it is necessary? I feel it is inclined to take the sting out of the purpose of the Bill.
I was going to say in another way what Deputy Flanagan has said. I think it is generally recognised that if you make a simple statement, such as that in the Bill at the moment, that the court has to be satisfied that the auctioneer is solvent, that is sufficient. You then go modifying that by saying he has to be solvent in relation to a, b and c. It is implied, therefore, that there may be some things in respect of which he is not required to be solvent. If you leave it as it is, that he is required to be solvent, that covers everything. It is now being suggested that he should satisfy the court that he is solvent in relation to the business of auctioneering, that he is solvent in relation to the business of house agent or in relation to any other business which he carries on. The amendment either means something in addition to what is in the Bill already or else it does not mean anything in addition to what is in the Bill already. The Minister should tell us if it means something in addition to what is there already or if it does not. If it does, why put this in? It will be taken as condoning their entitlement not to have to do what is already there.
If Deputy O'Higgins reads the amendment in the context of section 12, he will see that, if it makes any change, it widens the obligation which was placed on the auctioneer and in fact strengthens the Bill. The Institute of Chartered Accountants made representations to me asking whether, as the section stood, it only obliged them to inquire into the person's solvency in relation to the clients' accounts. In the amendment we are making it quite clear that the solvency we are speaking of applies in relation to the business of auctioneering, house agent or any other business in which the person may be engaged.
I hope the Minister did not accept that argument from the accountants' association. Unless I am looking at the Bill entirely wrongly that is what is there already. It does not say solvency in relation to the keeping of accounts. It is a blunt, simple, all-embracing statement that the person must show he is solvent. You are either solvent or you are insolvent. You cannot be partly solvent or partly insolvent. If you start by saying he has to be solvent in relation to his business as auctioneer, that he has to be solvent in relation to his business as house agent, then it appears that you are trying to cut it down. I know that is not what is intended.
Or any other business on which he is engaged.
A person is either solvent or he is not solvent. There is nothing in the Bill as it stands which says that the solvency is to be related to the keeping of accounts. It is either solvent or insolvent.
Surely the Minister realises that a person cannot be solvent and insolvent at the one time. I think the Bill as we had it originally was much stronger and much better than it is with the amendment. I feel very strongly about this amendment. Unless the Minister has a very special reason for those amendments and in order to have general approval and general agreement, I would ask the Minister very seriously not to press them. As a member of the council of the Irish Auctioneers' and Estate Agents' Association, I would ask the Minister not to press this amendment. As a matter of fact, I was in touch with the Minister yesterday regarding this amendment——
It was the following one.
——and the following amendment. I really feel that the Bill was much better without those amendments. Unless the Minister has some grave reason for doing so I would ask him not to press the amendment. There is no harm in discussing it but I feel we in the Auctioneers' Association were far happier with the Bill as it originally was than when we saw the amendments when they were circulated yesterday.
This is not a controversial Bill and all of us here are engaged in seeking to have as effective a Bill as possible in the sense of ensuring that auctioneers in the future will have to conform to certain standards and that the public will be protected by reason of having this annual application to the court before which the auctioneers must present their audited accounts. I placed great emphasis, on the Second Stage, on the importance of that being before the court.
The section says that the person must be solvent.
It is precisely on this that the accountants' association were not satisfied. After all, they are the people on whom we will be dependent. We will want to have properly furnished certificates before the court on which the court can make a decision whether or not the auctioneer should have his licence renewed. When the accountants' association mentioned this matter to me it placed an onus on me to ensure that the Institute of Chartered Accountants was fully au fait with its responsibilities and the responsibilities of its members in this regard. In this bald statement “that he is solvent” in section 12, subsection (4) (a) (iii) you are only told you must satisfy the district justice that the auctioneer is solvent when he makes application to have his licence renewed. That is all this bald statement says. The accountants' certificate has to refer to that bald issue. When the accountants' association came to me they said: “We do not know how to furnish a valid certificate giving full information on that until we are enabled to know to that the solvency is directed.” The particular accountant must be enabled to know into what solvency he is investigating and give a certificate. We heard their representations in this respect and decided to draft amendment No. 19 which pins down the requirements. This is in line with what we are seeking to do in this Bill. Amendment No. 19 clarifies the position for the accountant when drawing up this certificate. We substitute for the bald statement “That he is solvent”, which is there at the moment, the statement:
that in relation to the business of auctioneer or the business of house agent (as the case may be) and any other business in which he may be engaged, he is solvent.
On reflection, I can see a case for this point of view but I still think that a greater duty was imposed on the accountants as the Bill stands at the moment in that they have to inquire simpliciter whether the person is solvent or insolvent. I think if under those circumstances they were able to give a certificate to the court, then the court would have no doubt that in all respects the applicant was solvent. I think I am right in saying that in the Minister's amendment that requirement is being modified, is being toned down. I have said all that before and I think I am right. On reflecting on the position, I think it is probably right that it should be toned down, for the reason that you may have, say, a young auctioneer who has obtained a large mortgage on his house but it is purely a personal thing, having no relation to his position as auctioneer, or house agent or any other business in which he is engaged.
If for any reason the value of the premises were to diminish, the fact that there is a mortgage on the house would mean that he might find himself in the unfortunate position where the outstanding amount of his mortgage is possibly even greater than the value of his premises. While he is protected in the sense that there is a mortgage, and he is all right so long as he keeps up his mortgage payments, possibly an accountant looking at it from a purely balance sheet point of view might say: "This man has a mortgage for £5,000; the market value of his premises is only £4,000; therefore, on that he is insolvent."
I could see that kind of situation arising and I can, therefore, see the reason behind the case apparently put up by the accountants, that their attention should be specifically directed to the business carried on by the auctioneer, or house agent, or any other business he is engaged in, and that they should be relieved of any responsibility of inquiring into the purely personal responsibility of the auctioneer, once he is solvent in these fields. It modifies what is in the section already. It relieves the accountant to a certain extent but I agree, on reflection, that there may be a case for it.
I agree with Deputy M.J. O'Higgins. Surely the auditor investigating the accounts of the auctioneer will most certainly satisfy himself as to the total of the deposits and moneys held by the auctioneer in keeping for his clients. It will not be considered, nor will it be the business of the auditors, whether the auctioneer has a mortgage on his house or not. The auditor's business will be entirely to satisfy himself as to the solvency of the auctioneer.
That is not the purpose of the amendment.
We have an obligation in this House to the general public and we have an obligation to business and professional people. We also have an obligation to auctioneers as an important section of our business community. It would be wrong if in the discharge of their duties, the auditors appointed for the purpose of supplying the courts annually with certificates in order to obtain licences went into any other degree of business undertaken by auctioneers. There are people who may be publicans, or undertakers, who have an auctioneer's business as well and they have been very decent, honourable and straightforward.
TDs.
We cannot describe the TD's work as an occupation. If we were all to depend on membership of this House for an occupation our livelihood would be somewhat precarious. With regard to many business people who may be grocers, or undertakers, or who may be prominent in the licensed trade, or coal merchants, and who have auctioneering businesses as well, how many of those people have, to the knowledge of the Irish Auctioneers' and Estate Agents' Association, performed their duties in a highly reliable, dependable, trustworthy and honourable fashion? When the auditor goes to investigate the solvency of the auctioneer, he will investigate his record and ask for his bank account only in relation to his business as an auctioneer.
That is not the purpose of the amendment.
If we have an investigation into whether an auctioneer has a mortgage on his house and whether he has other business — maybe the undertaking business, the licensed trade, a grocery and hardware business — I think it would be wrong. I would express the opinion that it would lead to a certain amount of uneasiness, if the auditor of the auctioneer's business were to go into every other sphere of activity carried on by an auctioneer.
I agree that it is quite all right in the case of auctioneers who have no other profession or means of livelihood. However, fortunately, or unfortunately, we have a number of people carrying on what has been described as a most successful and thriving auctioneering business in conjunction with other businesses. If the other businesses are to be the subject of a certificate of solvency, there may be some degree of hardship on certain auctioneers who have conducted their business in an honourable and trustworthy manner. Can the Minister satisfy me that the reason for the amendment is to ensure that the auditors' certificate will only be in relation to the auctioneer's business as an auctioneer?
Or any other business?
That is what worries me. In so far as most auctioneers are concerned, they have no other business. But, let us take the case of the auctioneer who is running a grocery, hardware or undertaking establishment — and we have many such people throughout the country. What happens in that case? Is the certificate of solvency to cover all his other businesses? For instance, there may be an auctioneering firm and we have a number of them in the country, who are hardware traders. I have a few in mind and they have been in the auctioneering business in many cases for half a century. A number whom I know in the midlands have just come to my mind.
I am partly convinced from what Deputy M.J. O'Higgins says that there are grounds for the Minister's amendment but I was happier with the Bill without this amendment than with it.
The Bill was wider.
We are at crosspurposes here.
I can assure the Minister he has not satisfied me on this.
The Bill was wider, as it stood; the Minister is modifying it but he is going too far. He is going further than the auctioneer and house agent. He is also bringing into the amendment "and any other business in which he may be engaged".
Could the Minister say: is he sharpening the teeth of the Bill or is he pulling the teeth out of the Bill?
I am making sure that when an accountant draws up a certificate, which would be viewed by the court, this certificate would be directed to the particular purpose of the Bill, rather than have a global phrase that he is solvent which, in view of the accountants' profession, the people who are drawing up these certificates for the court, will leave the position open to doubt because——
Solvent as an auctioneer.
It just says that he is solvent. We are seeking to pin it down, to make it certain that the accountant, when he is preparing his certificate in accordance with this section, knows what he is to talk about; knows what he is to prepare.
The point Deputy Flanagan is raising is a valid one. I did not want to appear to raise any controversy with regard to this idea of the accountant's certificate. My own view — which I expressed to Deputy Flanagan before — was that I think the auctioneers' association are unwise, in my judgment, in inviting the position where their livelihood, as auctioneers, will depend on a certificate from any other profession. I think they should be content to deal with themselves, their regulations in the court. However, the solicitors' profession have adopted this particular idea of accountants' certificates; the auctioneers are now doing it, but Deputy Flanagan has argued that the requirement in relation to the inquiries to be carried out by the accountants should relate specifically to the business of the auctioneer only, as auctioneer; in other words, his business as auctioneer and house agent.
The Minister's amendment goes further than that. In amendment No. 19, the solvency requirement is:
that, in relation to the business of auctioneer or the business of house agent (as the case may be) ...
those two—
and any other business in which he may be engaged, he is solvent.
Therefore the obligation on the accountant, under this amendment, is two-fold: he must satisfy himself that the auctioneer, as auctioneer or house agent and in relation to any other business he carries on, is solvent.
I know, as Deputy Flanagan and most Deputies I am sure in this House know, a great many auctioneers in rural Ireland, in the country towns— this does not apply to any great extent in the city of Dublin at all, but certainly in rural Ireland — very often the person who has an auctioneer's licence is also a shopkeeper; he may be a farmer, he may own a garage; he carries on some other business. It is clear that under the Minister's amendment, the accountant must investigate solvency not only in relation to the business of auctioneer and house agent but also in relation to any other business carried on by the auctioneer, whether it is that of a publichouse, that of an undertaker, a farmer — whatever you like.
The Minister realises — unfortunately, to the regret of many in this country—and many of the general public realise that all too often insolvent persons were granted auctioneers' licences; that an auctioneer's licence was too easily and readily obtained. Is that not true, and the Minister agrees with that?
Yes; that is the whole purpose of the Bill.
The whole purpose of the Bill is that the Irish Auctioneers' and Estate Agents' Association want, first and foremost, to raise the standard. In an effort to raise the standard, we have asked for this Bill as a threefold effort; firstly, to raise the standard of the profession; secondly, to safeguard the general public, and thirdly, to prevent insolvent persons obtaining auctioneers' licences which could become a serious liability on their clients because of the fact they were insolvent. It has been known to the association down through the years that quite a number of persons who had no qualification of fitness, no qualification of solvency, or no qualification of character in many cases, obtained auctioneers' licences.
Here is a case in which it is now necessary to submit a certificate of solvency to the district court in order that the licence may be obtained. In the case of the certificate of solvency, it is important that all applicants for licences should have that certificate; that the accountant should be completely and entirely satisfied they are solvent, and solvent to a very high degree, before they are allowed to practise as auctioneers. All too often we have seen it; we can describe them as the mushroom auctioneers who sprang up overnight into the business, On many occasions, we have seen the general public suffer serious financial losses because they entrusted their business to firms or individuals, as auctioneers, who were not solvent. The certificate of solvency is absolutely necessary.
(Dublin): I believe this is a very fair amendment. I cannot see how any accountant could give a certificate of solvency, without inquiring into all one's business. It would be quite possible for any trader to transfer part of his assets — no matter what trade he is pursuing — across to the auctioneering business. He could show solvency in his auctioneering business but this money, which he has got from other sources, may put him in a solvent position.
Not if the regulations regarding the keeping of bank accounts are complied with; he must channel the money he gets in his auctioneering business into his clients' account in the bank.
(Dublin): He could be solvent in the auctioneering line but entirely insolvent in his other business. Is he a solvent person?
I think this could be clarified in this way. This thing depends upon proper certification by accountants. Accountancy is a very precise business and I think it is important to have a precise guideline here rather than the general phraseology; I think we have now in the amendment a precise guideline.
Does the Minister really think that his amendment strengthens the Bill and is entirely and completely in the interests of the auctioneering profession?
It is the interests of the auctioneering profession, and in the interests of the public.
I shall take the Minister's word on it, if he says so.
Amendment agreed to.
I move amendment No. 20:
In page 10, after line 26, to insert the following paragraph:
"(c) A certificate for the purposes of paragraph (b) shall not be deemed to be insufficient by reason only of the fact that —
(i) an interval has elapsed between the issue of the certifimer cate and the time of the application: provided that the interval does not exceed one month, or
(ii) the certificate, in so far as it relates to paragraph (a) (ii), indicates only that the accountant has no reason to believe that a client has suffered or is liable to suffer loss,
or by reason of both such facts."
This, again, is an amendment suggested by the Institute of Chartered Accountants and, like the previous one, deals with a special type of case, where the auctioneer has failed to keep proper accounts. I want to emphasise that we are dealing here not with a general accountant's certificate — which is provided for in the main part of the section — but with the special case where the auctioneer has failed to keep proper accounts and has come to the court to show that he has mended his ways. I do not think this emerged clearly from the discussion on the last amendment.
The main point of the amendment is to make it clear that the supporting certificate from the accountant need not be expressed to relate to the date of the court application. If the provision were to be interpreted in that way, it would be almost unworkable. The amendment spells out that the certificate may be given at any time in the preceding months. The accountants made the point that their certificate may have to be drawn up a week or so before the actual date of the court and, as the drafting stood, it might be held that they were certifying to what was the position at the actual date of the application, which would be a physical impossibility. To give it more flexibility, it now refers to a certificate from the accountant which relates to the position of the auctioneer at any date within a month prior to the application.
Is it not true that the certificate submitted by the auditor will be for the 12 months previous?
That is a separate matter. It has given rise to some of the confusion. In the early part of section 12 we deal with the certificate which will be submitted by the accountant and which will cover, as Deputy Flanagan says, the previous 12 months. What we are considering here in this amendment——
Is the separate records.
We are considering here the situation where the auctioneer has not complied with all the regulations to keep separate accounts. We are considering here, if you like, the bad case. We are providing for a more stringent type of examination in regard to solvency, which does not arise at all in the previous case. In subsection (4) we are providing for the case where the applicant has omitted to comply with the regulations concerning separate bank accounts, where he has omitted to do what is set out here in the Bill. In these cases we say the District Justice may, at his discretion, grant an application if the applicant conforms with certain conditions.
The main one is the one we discussed the last time, that the auctioneer is solvent in regard to his auctioneering business and his general business. In this amendment we say the certificate must be up to date. As the section was phrased, it might be a certificate as on the date of the court application. All we are doing now is relating it back to within four weeks of the court application. It must still be an up-todate certificate from the accountant setting out for the Justice the correct position of the auctioneer. That is separate altogether from the more general certificate we are obliging the auctioneer to present to the court every year, in which he will furnish an accountant's certificate stating that separate bank accounts have been kept, and setting out that he has performed all the duties he is obliged to perform under the Bill. The two matters are separate. We are dealing now with a bad case who has not complied with the Bill.
If we are dealing now with a bad case who has not complied with the terms of the Bill, how long is the court going to tolerate the bad type of auctioneer who is not keeping his records, not keeping separate accounts and not complying with the various sections of the Bill? I am extremely worried about this matter. If an auctioneer fails to keep separate records of his business transactions——
I know what the Deputy is getting at, the sort of auctioneer he has in mind.
——he should not get a licence. But now the professional body of accountants is going to make it easier for the defaulter to be restored for the purpose of getting a licence.
No; the Deputy has not read the section.
I am sorry the Minister has taken that line. This section certainly is not sharpening the teeth of the Bill.
This section is at the request of the Irish Auctioneers' Association, of which the Deputy is President.
This section is not at the request of the Auctioneers' Association.
It is, of course. It is only a slight amendment of a section put in at their request.
It is the amendment which is doing the harm.
If Deputy Flanagan would read subsection (4) of section 12.
I read it. Take the case of an auctioneer who does not keep proper records. The accountant is satisfied he is not keeping proper records. How long will such an auctioneer be tolerated? Is he still going to get his licence from the court?
Section 12 is the section dealing with the requirement that the auctioneer secured his licence each year on the basis of a certificate being furnished by an accountant that he is keeping separate accounts and that he is in a proper financial state. That is dealt with in subsections (1), (2) and (3). Now we come to subsection (4). That was put in at the request of the Irish auctioneers' association. I shall read it:
(4) (a) The District Justice may, at his discretion, grant an application for a certificate of qualification notwithstanding that, because of failure to comply with the provisions of the Auctioneers and House Agents Act, 1967, relating to the keeping of accounts and to the opening and keeping of client accounts, the applicant is unable to furnish the certificate required by subsection (3) of this section, provided that the applicant proves to the satisfaction of the District Justice —
(i) that he is, at the time of the application, complying with the said provisions and has taken all necessary steps to comply with them for the future;
(ii) that no client has suffered or is liable to suffer loss in respect of any transactions during the period when the said provisions were not complied with; and
(iii) that he is solvent.
All we have done here is to amend "solvency" in the previous amendment which was passed, so as to ensure, as far as the accountant is concerned, that in giving a certificate it will be solvency related to the auctioneer's business as an auctioneer or any other business he is carrying on. All we are saying in this amendment now before the House is that such a certificate shall be a certificate prepared by the accountant within one month prior to that application. The only slight amendment we are now suggesting here, by the last amendment and this amendment, in what has been agreed to by the Irish Auctioneers' Association is that we further pin down solvency so that the accountant can draw a proper certificate and we further state that this certificate must be furnished within one month prior to the application. We are therefore making only two slight amendments to a principle which has been recommended and agreed to by the Irish Auctioneers' Association.
I do not dispute that, but I thought the sections were better without the Minister's amendments. However, we agree to differ on that. If the Minister is satisfied the amendments are in the interests of the auctioneers and in the interests of the general public, I would not doubt his word for a moment.
(Dublin): If an auctioneer has an accountant who dies before the licence comes up for renewal, there would be a delay here in having the accounts in time.
That could happen. This is a saver section recommended by the auctioneers' association and designed to meet exceptional circumstances where there is an omission or mishap.
The amendments were recommended by the accountants' association.
They have to do the checking.
I agree they are a very important and responsible professional body.
Amendment agreed to.
I move amendment No. 21:
In page 10, line 48, after "subsection (3)" to insert "or a certificate for the purposes of subsection (4) (b)".
This is only a drafting amendment.
Amendment agreed to.
I move amendment No. 22:
In page 10, between lines 49 and 50, to insert the following:
"and different regulations may be made in respect of the two types of certificate mentioned in subparagraph (i)".
This is a clarifying amendment to put it beyond doubt that the two types of accountants' certificates—the ordinary annual certificates and the special one required where an auctioneer was negligent in the keeping of accounts — will not necessarily be subject to the same requirements in regard to the amount of spot-checking to be done and so on. It is only a detail.
Amendment agreed to.
I move amendment No. 23:
In page 10, line 57, after "examination" to insert the following:
"matters come or have come to his notice from which".
Again this is an amendment which makes no difference whatever to the principles of the Bill. It is again concerned with the certificate and its preparation by the accountants.
Amendment agreed to.
Section 12, as amended, agreed to.
Sections 13 and 14 agreed to.
Title agreed to.
Bill reported with amendments.
There are two small points relating to amendments Nos. 1 and 3.
Yes.
Report Stage ordered for Wednesday, 26th April, 1967.