Cleland & Ors v. Smith & Ors [2005] ScotCS CSIH_47 (29 April 2005)

Cleland & Ors v. Smith & Ors [2005] ScotCS CSIH_47 (29 April 2005)

The sheriff was entitled to award expenses to the pursuers as the expert's report provided a sufficient basis for the action and the defender would not have remedied the defects otherwise. However, the sheriff erred in dismissing the defender's counterclaim as irrelevant; the defender had a stateable case for the retention sum and sums under separate contracts, subject to any relevant defence.

Citation
[2005] ScotCS CSIH_47
Parties
Pursuers and Respondents: William Paton Cleland and Others, the Trustees of John David Paton; First Defender and Appellant: George W. Smith; Second Defender: Derek L. Young; Third Defender: James D. Anderson
Jurisdiction
Scotland
Judgment Date
29 April 2005
Procedural Posture
Appeal / Appeal From Sheriff Court Decision on Expenses and Counterclaim
Outcome
Appeal allowed in part; sheriff's decision on expenses to pursuers upheld; counterclaim dismissal reversed and remitted for further proceedings.
Legal Topics
Building Contract Disputes, Expert Determination, Remedial Works, Retention Sums, Counterclaims, Expenses (costs)
Contract Law Construction Law Building Contract Disputes Expert Determination Remedial Works Retention Sums Counterclaims Expenses (costs)

Case Brief

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Parties

William Paton Cleland and Others, the Trustees of John David Paton

Pursuers and Respondents

George W. Smith

First Defender and Appellant

Derek L. Young

Second Defender

James D. Anderson

Third Defender

Procedural Posture

Appeal / Appeal From Sheriff Court Decision on Expenses and Counterclaim

Legal Issues

  1. 1 Whether the sheriff was entitled to award expenses to the pursuers after the action became unnecessary due to remedial works
  2. 2 Whether the defender was entitled to payment of the retention sum and sums under subsequent contracts (counterclaim)

Ratio Decidendi

The sheriff was entitled to award expenses to the pursuers as the expert's report provided a sufficient basis for the action and the defender would not have remedied the defects otherwise. However, the sheriff erred in dismissing the defender's counterclaim as irrelevant; the defender had a stateable case for the retention sum and sums under separate contracts, subject to any relevant defence.

Court Disposition

Appeal allowed in part; sheriff's decision on expenses to pursuers upheld; counterclaim dismissal reversed and remitted for further proceedings.

Orders

  • Sheriff's interlocutor adhered to except as regards the counterclaim
  • Defender's appeal allowed in respect of counterclaim