Kenneil v. Kenneil & Anor [2006] ScotCS CSOH_8 (18 January 2006)

Kenneil v. Kenneil & Anor [2006] ScotCS CSOH_8 (18 January 2006)

The pursuer and first defender do not have title and interest to challenge the standard securities because the Reporter acts as a court officer, not as their agent, and they are not parties to the missives nor entitled to sue by jus quaesitum tertio. Accordingly, their claims to reduce the standard securities fail and the procedure adopted is competent but the substantive challenge fails for lack of title and interest.

Citation
[2006] ScotCS CSOH_8
Parties
Pursuer: Edan Hugh Nelson Kenneil; First Defender: Damon Balfour Nelson Kenneil; Second Defender: Alistair Thomas Nelson Kenneil; Reporter: Andrew Rettie (Reporter); Interested Party: Caroline Kenneil; Interested Party: Laura Frances Bonnie Kenneil; Interested Party: McClure Naismith
Jurisdiction
Scotland
Judgment Date
18 January 2006
Procedural Posture
Division and Sale; Ancillary Proceedings / Hearing on Reporter's Report and Minutes Challenging Standard Securities
Outcome
Minutes for the pursuer and first defender dismissed; second defender's and interested parties' pleas upheld.
Legal Topics
Division and Sale of Heritable Property, Capacity of Court Appointed Reporter, Validity of Standard Securities, Fraudulent Preference, Title and Interest to Sue, Agency and Jus Quaesitum Tertio, Competency of Procedure
Property Law Contract Law Insolvency Law Civil Procedure Division and Sale of Heritable Property Capacity of Court Appointed Reporter Validity of Standard Securities Fraudulent Preference +3 more

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Parties

Edan Hugh Nelson Kenneil

Pursuer

Damon Balfour Nelson Kenneil

First Defender

Alistair Thomas Nelson Kenneil

Second Defender

Andrew Rettie (Reporter)

Reporter

Caroline Kenneil

Interested Party

Laura Frances Bonnie Kenneil

Interested Party

McClure Naismith

Interested Party

Procedural Posture

Division and Sale; Ancillary Proceedings / Hearing on Reporter's Report and Minutes Challenging Standard Securities

Legal Issues

  1. 1 Whether pursuer and first defender have title and interest to challenge standard securities granted by second defender
  2. 2 Whether standard securities granted by second defender are reducible as fraudulent preferences
  3. 3 Whether the Reporter acts as agent for the pro indiviso proprietors or as a court officer

Ratio Decidendi

The pursuer and first defender do not have title and interest to challenge the standard securities because the Reporter acts as a court officer, not as their agent, and they are not parties to the missives nor entitled to sue by jus quaesitum tertio. Accordingly, their claims to reduce the standard securities fail and the procedure adopted is competent but the substantive challenge fails for lack of title and interest.

Court Disposition

Minutes for the pursuer and first defender dismissed; second defender's and interested parties' pleas upheld.

Orders

  • Reporter authorised to act in accordance with paragraphs 5(viii) and (x) of his Report, subject to parties' further submissions on consequences.