GORDON COLLINS v. CAROL ANNE SWEENEY [2013] ScotSC 20 (21 February 2013)

GORDON COLLINS v. CAROL ANNE SWEENEY [2013] ScotSC 20 (21 February 2013)

A co-proprietor cannot be compelled to sell their share to another co-proprietor against their will; the right to insist on sale on the open market is absolute. The defender's counterclaim for transfer is incompetent without consent. The defender's claim for reimbursement is sufficiently specified to allow a proof before answer.

Citation
[2013] ScotSC 20
Parties
Pursuer: Gordon Collins; Defender: Carol Anne Sweeney
Jurisdiction
Scotland
Judgment Date
21 February 2013
Procedural Posture
Civil Division and Sale of Heritable Property / Judgment After Debate on Relevancy and Competency of Principal Action and Counterclaim
Outcome
Decree de plano granted for pursuer in principal action; defender's counterclaim for transfer dismissed; proof before answer allowed on defender's claim for reimbursement; hearing on expenses assigned.
Legal Topics
Division and Sale of Heritable Property, Pro Indiviso Ownership, Equitable Division of Proceeds, Competency of Counterclaim, Specification of Pleadings
Property Law Civil Procedure Division and Sale of Heritable Property Pro Indiviso Ownership Equitable Division of Proceeds Competency of Counterclaim Specification of Pleadings

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Parties

Gordon Collins

Pursuer

Carol Anne Sweeney

Defender

Procedural Posture

Civil Division and Sale of Heritable Property / Judgment After Debate on Relevancy and Competency of Principal Action and Counterclaim

Legal Issues

  1. 1 Whether a co-proprietor can be compelled to sell their share to another co-proprietor against their will
  2. 2 Whether the defender's counterclaim for transfer of the pursuer's share is competent
  3. 3 Whether the defender's claim for reimbursement of expenditure is sufficiently specified

Ratio Decidendi

A co-proprietor cannot be compelled to sell their share to another co-proprietor against their will; the right to insist on sale on the open market is absolute. The defender's counterclaim for transfer is incompetent without consent. The defender's claim for reimbursement is sufficiently specified to allow a proof before answer.

Court Disposition

Decree de plano granted for pursuer in principal action; defender's counterclaim for transfer dismissed; proof before answer allowed on defender's claim for reimbursement; hearing on expenses assigned.

Orders

  • Sustains pleas-in-law 1, 2, and 4 for pursuer in principal action
  • Grants decree de plano in terms of craves 1, 2, and 3