Nigel Lowe Holdings Ltd v. Intercon Construction (Pty) Ltd & Anor [2004] ScotSC 29 (22 April 2004)

Nigel Lowe Holdings Ltd v. Intercon Construction (Pty) Ltd & Anor [2004] ScotSC 29 (22 April 2004)

The asset transfer agreements effected an actual assignation of the relevant contractual rights, not merely an agreement to assign; rights under a contract, even if contingent, are capable of assignation; intimation was validly made by the raising of the action and the pursuers' title to sue is sufficiently averred; thus, the appeal is refused and the sheriff's interlocutor is adhered to with a minor variation to clarify the issue for proof.

Citation
[2004] ScotSC 29
Parties
Pursuers and Respondents: Nigel Lowe Holdings Limited; First Defenders and Appellants: Intercon Construction (Pty) Limited; Second Defender and Appellant: John Glendinning
Jurisdiction
Scotland
Judgment Date
22 April 2004
Procedural Posture
Civil Appeal / Appeal Against Sheriff's Interlocutor Following Debate on Title to Sue
Outcome
Appeal refused except for minor variation; sheriff's interlocutor adhered to as varied.
Legal Topics
Assignation of Contractual Rights, Title to Sue, Intimation of Assignation, Interpretation of Contracts, Corporate Asset Transfer
Contract Law Civil Procedure Assignation of Contractual Rights Title to Sue Intimation of Assignation Interpretation of Contracts Corporate Asset Transfer

Case Brief

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Parties

Nigel Lowe Holdings Limited

Pursuers and Respondents

Intercon Construction (Pty) Limited

First Defenders and Appellants

John Glendinning

Second Defender and Appellant

Procedural Posture

Civil Appeal / Appeal Against Sheriff's Interlocutor Following Debate on Title to Sue

Legal Issues

  1. 1 Whether the alleged contract between Nigel Lowe and Associates and the first defenders was transferred to the pursuers and thus whether the pursuers have title to sue
  2. 2 Whether the asset transfer agreements effected an actual assignation or merely an agreement to assign
  3. 3 Whether intimation of assignation was validly made to the defenders

Ratio Decidendi

The asset transfer agreements effected an actual assignation of the relevant contractual rights, not merely an agreement to assign; rights under a contract, even if contingent, are capable of assignation; intimation was validly made by the raising of the action and the pursuers' title to sue is sufficiently averred; thus, the appeal is refused and the sheriff's interlocutor is adhered to with a minor variation to clarify the issue for proof.

Court Disposition

Appeal refused except for minor variation; sheriff's interlocutor adhered to as varied.

Orders

  • Varies the sheriff's interlocutor of 14 July 2003 by amending the issue for proof to clarify the contract in question.
  • Refuses the appeal quoad ultra and adheres to the sheriff's interlocutor.