Fordycee v. Clarke [2006] ScotSC 73 (24 August 2006)

Fordycee v. Clarke [2006] ScotSC 73 (24 August 2006)

The court held that the order for sale of the heritable property was competent at the time it was made, as the pleadings and admissions supported it and no plea to the contrary was taken. The fact of extract did not render recall incompetent under section 14(4) of the 1985 Act. The defender was not personally barred from seeking recall, but no sufficient cause was shown to justify recall, as the defender's change of mind did not outweigh the pursuer's reliance and the need for finality. The court further held that it was not competent to order the sale of partnership assets (craves 5 and 6) as this would disregard the rights of partnership creditors and the terms of the partnership...

Citation
[2006] ScotSC 73
Parties
Pursuer: Patricia Fordyce or Burton or Clarke; Defender: Alan Alfred Clarke
Jurisdiction
Scotland
Judgment Date
24 August 2006
Procedural Posture
Divorce and Financial Provision / Interlocutory Decision on Recall of Incidental Order and Competency of Craves
Outcome
Defender's minute for recall refused; defender's plea to competency of craves 5 and 6 sustained; craves 5 and 6 dismissed; hearing on expenses assigned.
Legal Topics
Division of Matrimonial Property, Sale of Partnership Assets, Incidental Orders, Personal Bar, Competency of Orders
Family Law Partnership Law Division of Matrimonial Property Sale of Partnership Assets Incidental Orders Personal Bar Competency of Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Patricia Fordyce or Burton or Clarke

Pursuer

Alan Alfred Clarke

Defender

Procedural Posture

Divorce and Financial Provision / Interlocutory Decision on Recall of Incidental Order and Competency of Craves

Legal Issues

  1. 1 Whether the court can recall an incidental order for sale of heritable property after extract
  2. 2 Whether the court can order sale of partnership property as part of matrimonial proceedings
  3. 3 Whether the defender is personally barred from seeking recall

Ratio Decidendi

The court held that the order for sale of the heritable property was competent at the time it was made, as the pleadings and admissions supported it and no plea to the contrary was taken. The fact of extract did not render recall incompetent under section 14(4) of the 1985 Act. The defender was not personally barred from seeking recall, but no sufficient cause was shown to justify recall, as the defender's change of mind did not outweigh the pursuer's reliance and the need for finality. The court further held that it was not competent to order the sale of partnership assets (craves 5 and 6) as this would disregard the rights of partnership creditors and the terms of the partnership...

Court Disposition

Defender's minute for recall refused; defender's plea to competency of craves 5 and 6 sustained; craves 5 and 6 dismissed; hearing on expenses assigned.

Orders

  • Refusal of defender's minute for recall of order for sale of heritable property
  • Sustaining of defender's plea to competency of craves 5 and 6 and dismissal of those craves