Murdock & Anor v McQueen [2004] ScotSC 72 (08 November 2004)

Murdock & Anor v McQueen [2004] ScotSC 72 (08 November 2004)

The court held that the defender's first ground for rescission (property being listed contrary to condition 14.6) was valid in principle, subject to proof of waiver or personal bar. The second ground (lack of listed building consent under condition 12) was not well founded as the qualified deletion only required the defender to make her own inquiries. The pursuers' pleadings on waiver and personal bar were sufficient to go to proof. The action was competent with a single crave for damages by joint sellers. All matters except the defender's averments on the second ground for rescission were allowed to go to proof before answer.

Citation
[2004] ScotSC 72
Parties
Pursuer: Mr Brian Murdock; Pursuer: Dr Nicola Kim Murdock; Defender: Mrs Heather McQueen
Jurisdiction
Scotland
Judgment Date
08 November 2004
Procedural Posture
Civil (breach of Contract) / Interlocutory Judgment on Preliminary Pleas; Proof Before Answer Allowed
Outcome
Interlocutory judgment; proof before answer allowed; certain averments excluded from probation; amendment of pleadings allowed; expenses reserved.
Legal Topics
Breach of Contract, Missives of Sale, Rescission, Waiver, Personal Bar, Listed Building Consent, Damages
Contract Law Property Law Breach of Contract Missives of Sale Rescission Waiver Personal Bar Listed Building Consent +1 more

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Parties

Mr Brian Murdock

Pursuer

Dr Nicola Kim Murdock

Pursuer

Mrs Heather McQueen

Defender

Procedural Posture

Civil (breach of Contract) / Interlocutory Judgment on Preliminary Pleas; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the defender had valid grounds to rescind the contract for sale of property under the missives
  2. 2 Whether the pursuers' pleadings on waiver and personal bar were sufficient to prevent rescission
  3. 3 Whether the action was competent with a single crave for damages by joint pursuers

Ratio Decidendi

The court held that the defender's first ground for rescission (property being listed contrary to condition 14.6) was valid in principle, subject to proof of waiver or personal bar. The second ground (lack of listed building consent under condition 12) was not well founded as the qualified deletion only required the defender to make her own inquiries. The pursuers' pleadings on waiver and personal bar were sufficient to go to proof. The action was competent with a single crave for damages by joint sellers. All matters except the defender's averments on the second ground for rescission were allowed to go to proof before answer.

Court Disposition

Interlocutory judgment; proof before answer allowed; certain averments excluded from probation; amendment of pleadings allowed; expenses reserved.

Orders

  • Repels defender's sixth plea-in-law for want of insistence.
  • Sustains pursuers' third plea-in-law to the extent of excluding from probation the defender's averments on the second ground for rescission.