Kenneil v Kenneil & Anor [2006] ScotCS CSOH_95 (16 June 2006)

Kenneil v Kenneil & Anor [2006] ScotCS CSOH_95 (16 June 2006)

The second defender failed to establish any realistic prospect of recovering the forfeited deposit; the deposit and accrued interest are to be treated as part of the proceeds of sale and distributed accordingly. The apportionment of sale expenses as previously ordered stands, with the second defender bearing additional costs due to his default. Interim payments to parties, including secured creditors, are authorised by consent.

Citation
[2006] ScotCS CSOH_95
Parties
Pursuer: Edan Hugh Nelson Kenneil; First Defender: Damon Balfour Nelson Kenneil; Second Defender: Alistair Thomas Nelson Kenneil; Secured Creditor/representing Second Defender: Caroline Kenneil; Secured Creditor: Laura (Bonnie) Kenneil; Reporter: G Hawkes
Jurisdiction
Scotland
Judgment Date
16 June 2006
Procedural Posture
Action of Division and Sale / Post Sale, Distribution of Proceeds, Interlocutor and Reasons
Outcome
Forfeited deposit and interest to be distributed as part of sale proceeds; expenses apportioned per prior orders; interim payments authorised by consent; further sums to be paid after taxation of legal fees.
Legal Topics
Division and Sale of Heritable Property, Distribution of Sale Proceeds, Standard Securities, Representation Rights, Expenses of Sale, Forfeiture of Deposit
Property Law Civil Procedure Division and Sale of Heritable Property Distribution of Sale Proceeds Standard Securities Representation Rights Expenses of Sale Forfeiture of Deposit

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Parties

Edan Hugh Nelson Kenneil

Pursuer

Damon Balfour Nelson Kenneil

First Defender

Alistair Thomas Nelson Kenneil

Second Defender

Caroline Kenneil

Secured Creditor/representing Second Defender

Laura (Bonnie) Kenneil

Secured Creditor

G Hawkes

Reporter

Procedural Posture

Action of Division and Sale / Post Sale, Distribution of Proceeds, Interlocutor and Reasons

Legal Issues

  1. 1 Whether the forfeited deposit of £370,000 plus interest should be distributed as part of the sale proceeds
  2. 2 Whether the second defender has a realistic claim to recover the forfeited deposit
  3. 3 How expenses of sale should be apportioned

Ratio Decidendi

The second defender failed to establish any realistic prospect of recovering the forfeited deposit; the deposit and accrued interest are to be treated as part of the proceeds of sale and distributed accordingly. The apportionment of sale expenses as previously ordered stands, with the second defender bearing additional costs due to his default. Interim payments to parties, including secured creditors, are authorised by consent.

Court Disposition

Forfeited deposit and interest to be distributed as part of sale proceeds; expenses apportioned per prior orders; interim payments authorised by consent; further sums to be paid after taxation of legal fees.

Orders

  • Forfeited deposit of £370,000 plus interest included in proceeds for distribution
  • Apportionment of sale expenses as previously ordered, with second defender liable for additional costs