Johnston v Johnston [1999] ScotCS 28 (20 January 1999)

Johnston v Johnston [1999] ScotCS 28 (20 January 1999)

The reporter was entitled, as a matter of professional judgment, to conclude that the south western part of the farm could not be equitably divided due to the uncertainty and potential inequality in future development value, and that sale is appropriate to ensure equitable sharing of any realised development value. The reasoning is sufficiently clear and division of the north eastern part is appropriate as recommended.

Citation
[1999] ScotCS 28
Parties
Pursuer: Iain Douglas Johnston; Defender: Robert (known as Roy) Johnston
Jurisdiction
Scotland
Judgment Date
20 January 1999
Procedural Posture
Division and Sale Action / Opinion Following Hearing on Reporter's Report and Objections
Outcome
Remit to reporter for limited purpose; pursuer's objection rejected; division and sale as recommended by reporter accepted.
Legal Topics
Co Ownership, Division and Sale, Equitable Division, Development Potential, Objection to Reporter’s Findings
Property Law Civil Procedure Co Ownership Division and Sale Equitable Division Development Potential Objection to Reporter’s Findings

Case Brief

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Parties

Iain Douglas Johnston

Pursuer

Robert (known as Roy) Johnston

Defender

Procedural Posture

Division and Sale Action / Opinion Following Hearing on Reporter's Report and Objections

Legal Issues

  1. 1 Whether the farm and lands of Roughlands can be equitably divided between co-proprietors or should be sold
  2. 2 Adequacy of reporter's reasoning regarding indivisibility and development potential
  3. 3 Appropriateness of sale versus division given future development prospects

Ratio Decidendi

The reporter was entitled, as a matter of professional judgment, to conclude that the south western part of the farm could not be equitably divided due to the uncertainty and potential inequality in future development value, and that sale is appropriate to ensure equitable sharing of any realised development value. The reasoning is sufficiently clear and division of the north eastern part is appropriate as recommended.

Court Disposition

Remit to reporter for limited purpose; pursuer's objection rejected; division and sale as recommended by reporter accepted.

Orders

  • Remit to reporter to fix and determine the line of the new fence dividing the 23.993 hectare field, after receiving representations from parties and considering the correct boundary with West Lodge.
  • Defender's solicitors to provide reporter with titles to West Lodge property.