GORDON COLLINS v. CAROL ANNE SWEENEY [2014] ScotSC 54 (21 March 2014)

GORDON COLLINS v. CAROL ANNE SWEENEY [2014] ScotSC 54 (21 March 2014)

The right of a co-proprietor to division and sale is absolute and cannot be qualified by equity; therefore, in a defended action, the court cannot order the sale of one party's share to the other absent agreement or implied consent.

Citation
[2014] ScotSC 54
Parties
Pursuer: Gordon Collins; Defender: Carol Anne Sweeney
Jurisdiction
Scotland
Judgment Date
21 March 2014
Procedural Posture
Appeal (civil) / Appeal Judgment
Outcome
Appeal refused; sheriff's interlocutor adhered to.
Legal Topics
Division and Sale, Co Ownership, Equitable Jurisdiction, Competency of Remedies
Property Law Civil Procedure Division and Sale Co Ownership Equitable Jurisdiction Competency of Remedies

Case Brief

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Parties

Gordon Collins

Pursuer

Carol Anne Sweeney

Defender

Procedural Posture

Appeal (civil) / Appeal Judgment

Legal Issues

  1. 1 Whether the court can order the sale of one co-proprietor's share to the other in a defended action for division and sale
  2. 2 Whether equitable considerations can qualify the absolute right to division and sale

Ratio Decidendi

The right of a co-proprietor to division and sale is absolute and cannot be qualified by equity; therefore, in a defended action, the court cannot order the sale of one party's share to the other absent agreement or implied consent.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to.

Orders

  • Defender found liable to the pursuer in the expenses of the appeal.
  • Account of expenses to be lodged and remitted to the auditor of court to tax and report.