Kenneil v Kenneil [2010] ScotCS CSOH_119 (20 August 2010)

Kenneil v Kenneil [2010] ScotCS CSOH_119 (20 August 2010)

Caroline Kenneil failed to vouch any outstanding indebtedness to establish her title and interest to oppose the Reporter's motion. The Auditor's process, though lacking a hearing, constituted a taxation of fees, and none of the paying parties objected. Allegations of misconduct had already been considered and rejected by the court. Accordingly, the Reporter's motion was granted and Caroline's motion refused.

Citation
[2010] ScotCS CSOH_119
Parties
Pursuer: Edan Hugh Nelson Kenneil; First Defender: Damon Balfour Nelson Kenneil; Second Defender: Alistair Thomas Nelson Kenneil; Court Appointed Officer/selling Agent: Andrew Rettie (Reporter); Party Present/objector: Caroline Kenneil
Jurisdiction
Scotland
Judgment Date
20 August 2010
Procedural Posture
Action of Division and Sale / Motion Hearing on Approval of Auditor's Report and Opposition Thereto
Outcome
Reporter's motion granted; Caroline Kenneil's motion refused.
Legal Topics
Division and Sale of Heritable Property, Court Appointed Sale, Expenses of Sale, Taxation of Legal Fees, Standing to Oppose Motions
Property Law Civil Procedure Division and Sale of Heritable Property Court Appointed Sale Expenses of Sale Taxation of Legal Fees Standing to Oppose Motions

Case Brief

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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)

Court Appointed Officer/selling Agent

Caroline Kenneil

Party Present/objector

Procedural Posture

Action of Division and Sale / Motion Hearing on Approval of Auditor's Report and Opposition Thereto

Legal Issues

  1. 1 Whether Caroline Kenneil has title and interest to oppose the Reporter's motion for approval of the Auditor's Report on legal fees
  2. 2 Whether the Auditor's process constituted a proper taxation of fees
  3. 3 Whether the court should inquire into alleged misconduct by the Reporter and others in the conduct of the sale

Ratio Decidendi

Caroline Kenneil failed to vouch any outstanding indebtedness to establish her title and interest to oppose the Reporter's motion. The Auditor's process, though lacking a hearing, constituted a taxation of fees, and none of the paying parties objected. Allegations of misconduct had already been considered and rejected by the court. Accordingly, the Reporter's motion was granted and Caroline's motion refused.

Court Disposition

Reporter's motion granted; Caroline Kenneil's motion refused.

Orders

  • Approval of the Auditor's Report on Shepherd and Wedderburn's fees and outlays.
  • Permission for Shepherd and Wedderburn to apply retained funds for settlement of fees and outlays.