Malkin & Anor v Gibson [2008] ScotCS CSIH_25 (13 March 2008)

Malkin & Anor v Gibson [2008] ScotCS CSIH_25 (13 March 2008)

The defender's counterclaim for rectification was irrelevant because he did not aver that the pursuers' title or title plan was inaccurate or failed to express the grantors' intention. The defender's position was that, on a proper construction, the disputed area was not included in the pursuers' title, and thus rectification was not required. The appropriate remedy for clarification of boundaries is declarator, not rectification.

Citation
[2008] ScotCS CSIH_25
Parties
Pursuers and Appellants: Leslie Stuart Malkin and Another; Defender and Respondent: Mark Gibson
Jurisdiction
Scotland
Judgment Date
13 March 2008
Procedural Posture
Appeal From Sheriff Court (civil) / Interlocutory Appeal on Relevancy of Counterclaim (rectification)
Outcome
Sheriff's interlocutor recalled; first plea-in-law for pursuers in counterclaim sustained as regards third and fourth craves; third and fourth craves of counterclaim dismissed; proof before answer allowed on remaining averments; continuation allowed for parties to consider amendments.
Legal Topics
Boundary Disputes, Rectification of Title, Land Registration, Declarator, Title to Sue
Property Law Civil Procedure Boundary Disputes Rectification of Title Land Registration Declarator Title to Sue

Case Brief

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Parties

Leslie Stuart Malkin and Another

Pursuers and Appellants

Mark Gibson

Defender and Respondent

Procedural Posture

Appeal From Sheriff Court (civil) / Interlocutory Appeal on Relevancy of Counterclaim (rectification)

Legal Issues

  1. 1 Whether the defender's counterclaim for rectification of the pursuers' title is relevant under sections 8 and 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
  2. 2 Whether the defender has averred a sufficient basis for rectification as opposed to declarator
  3. 3 Whether clarification or rectification is the appropriate remedy

Ratio Decidendi

The defender's counterclaim for rectification was irrelevant because he did not aver that the pursuers' title or title plan was inaccurate or failed to express the grantors' intention. The defender's position was that, on a proper construction, the disputed area was not included in the pursuers' title, and thus rectification was not required. The appropriate remedy for clarification of boundaries is declarator, not rectification.

Court Disposition

Sheriff's interlocutor recalled; first plea-in-law for pursuers in counterclaim sustained as regards third and fourth craves; third and fourth craves of counterclaim dismissed; proof before answer allowed on remaining averments; continuation allowed for parties to consider amendments.

Orders

  • Recall Sheriff's interlocutor dated 6 July 2007
  • Sustain first plea-in-law for pursuers in counterclaim as regards third and fourth craves