Kilcoyne & Ors v Patullo [2014] ScotCS CSIH_34 (11 April 2014)

Kilcoyne & Ors v Patullo [2014] ScotCS CSIH_34 (11 April 2014)

The court held that the statutory entitlement to interest under s24(3) of the Partnership Act 1890 did not require express pleading or proof of actual payment, and was not too remote. The sheriff was entitled to find that ongoing costs incurred by the pursuers after 1 April 2011 were balanced by rental income, and the appellant failed to show the sheriff was plainly wrong in his findings. Both grounds of appeal failed.

Citation
[2014] ScotCS CSIH_34
Parties
Pursuers and Respondents: Derek Kilcoyne, Steven Kilcoyne and Anthony John Kilcoyne, as the whole partners of and trustees for the Firm of S & A Kilcoyne; First Defender and Appellant: Kenneth Patullo, as Interim Judicial Factor on the estate of the late Mohammed Sadiq; Second and Third Defenders: Mohammed Saeed and Zamrud Khan, as Executors Nominate of the late Mohammed Sadiq
Jurisdiction
Scotland
Judgment Date
11 April 2014
Procedural Posture
Commercial Action, Appeal / Appeal From Sheriff Principal's Interlocutor
Outcome
Appeal refused
Legal Topics
Damages for Breach of Contract, Mitigation of Damages, Interest on Partnership Advances, Remoteness of Damage
Contract Law Partnership Law Damages for Breach of Contract Mitigation of Damages Interest on Partnership Advances Remoteness of Damage

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 15
Sign in to unlock

Parties

Derek Kilcoyne, Steven Kilcoyne and Anthony John Kilcoyne, as the whole partners of and trustees for the Firm of S & A Kilcoyne

Pursuers and Respondents

Kenneth Patullo, as Interim Judicial Factor on the estate of the late Mohammed Sadiq

First Defender and Appellant

Mohammed Saeed and Zamrud Khan, as Executors Nominate of the late Mohammed Sadiq

Second and Third Defenders

Procedural Posture

Commercial Action, Appeal / Appeal From Sheriff Principal's Interlocutor

Legal Issues

  1. 1 Recoverability and mitigation of damages for breach of contract
  2. 2 Entitlement to interest on partners' advances under Partnership Act 1890 s24(3)
  3. 3 Remoteness of damages

Ratio Decidendi

The court held that the statutory entitlement to interest under s24(3) of the Partnership Act 1890 did not require express pleading or proof of actual payment, and was not too remote. The sheriff was entitled to find that ongoing costs incurred by the pursuers after 1 April 2011 were balanced by rental income, and the appellant failed to show the sheriff was plainly wrong in his findings. Both grounds of appeal failed.

Court Disposition

Appeal refused

Orders

  • Appeal refused
  • Questions of expenses reserved