Johnstone v. Johnstone & Anor [2006] ScotCS CSOH_71 (05 May 2006)

Johnstone v. Johnstone & Anor [2006] ScotCS CSOH_71 (05 May 2006)

The petitioners failed to procure payment into the respondent's account on the due date as required by the contract, and also failed to pay the exact amounts specified. These failures triggered the default provisions, entitling the respondent to demand the whole outstanding balance. The court is bound to enforce the express terms of the contract and cannot disregard minor shortfalls or delays.

Citation
[2006] ScotCS CSOH_71
Parties
Petitioners: Lewis Alexander Johnstone and another; Respondents: Paul Johnstone and another
Jurisdiction
Scotland
Judgment Date
05 May 2006
Procedural Posture
Petition for Suspension and Interdict / Interim Hearing on Recall of Interim Suspension and Interdict
Outcome
Interlocutor of 28 March 2006 recalled. Interim suspension and interdict continued only in relation to the sum of £11,678.75 (interest).
Legal Topics
Enforcement of Contractual Payment Terms, Default Provisions, Suspension of Diligence, Interdict
Contract Law Civil Procedure Enforcement of Contractual Payment Terms Default Provisions Suspension of Diligence Interdict

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Parties

Lewis Alexander Johnstone and another

Petitioners

Paul Johnstone and another

Respondents

Procedural Posture

Petition for Suspension and Interdict / Interim Hearing on Recall of Interim Suspension and Interdict

Legal Issues

  1. 1 Whether failure to pay instalments in full and on time under a contract entitles the respondent to demand the whole outstanding balance under the default clause
  2. 2 Whether minor shortfalls or banking delays constitute default under the contract

Ratio Decidendi

The petitioners failed to procure payment into the respondent's account on the due date as required by the contract, and also failed to pay the exact amounts specified. These failures triggered the default provisions, entitling the respondent to demand the whole outstanding balance. The court is bound to enforce the express terms of the contract and cannot disregard minor shortfalls or delays.

Court Disposition

Interlocutor of 28 March 2006 recalled. Interim suspension and interdict continued only in relation to the sum of £11,678.75 (interest).

Orders

  • Recall of interlocutor of 28 March 2006
  • Ad interim suspension of charges served on petitioners only in so far as they relate to £11,678.75