Peter Cusack Property Consultancy Ltd against Angus Simpson and The Last Known Representatives of Audrey Simpson (Deceased) [2024] SCGLA 44 (05 March 2024)

Peter Cusack Property Consultancy Ltd against Angus Simpson and The Last Known Representatives of Audrey Simpson (Deceased) [2024] SCGLA 44 (05 March 2024)

The pursuer's claims for common charges on account, legal expenses, and late payment charges are irrelevant and lacking in specification because the pursuer failed to aver and prove compliance with the Deed of Conditions' notice requirements, failed to establish a contractual or statutory basis for late payment charges, and sought legal expenses by an incompetent mechanism. The action against the second defender is incompetent as it is not directed against named representatives.

Citation
[2024] SCGLA 44
Parties
Pursuer: Peter Cusack Property Consultancy Ltd; First Defender: Angus Simpson; Second Defender: The Last Known Representatives of Audrey Simpson (Deceased)
Jurisdiction
Scotland
Judgment Date
05 March 2024
Procedural Posture
Ordinary Action (formerly Simple Procedure) / Debate on Preliminary Pleas; Judgment on Relevancy and Specification
Outcome
Action dismissed
Legal Topics
Factoring Services, Common Charges, Legal Expenses Recovery, Late Payment Charges, Competency of Actions Against Deceased's Representatives
Property Law Contract Law Civil Procedure Factoring Services Common Charges Legal Expenses Recovery Late Payment Charges Competency of Actions Against Deceased's Representatives

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 14 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Peter Cusack Property Consultancy Ltd

Pursuer

Angus Simpson

First Defender

The Last Known Representatives of Audrey Simpson (Deceased)

Second Defender

Procedural Posture

Ordinary Action (formerly Simple Procedure) / Debate on Preliminary Pleas; Judgment on Relevancy and Specification

Legal Issues

  1. 1 Whether the pursuer is entitled to recover common charges 'on account' without proper written notice under the Deed of Conditions
  2. 2 Whether legal expenses incurred in the present action are recoverable as a debt rather than by judicial award of expenses
  3. 3 Whether late payment charges are contractually or statutorily recoverable

Ratio Decidendi

The pursuer's claims for common charges on account, legal expenses, and late payment charges are irrelevant and lacking in specification because the pursuer failed to aver and prove compliance with the Deed of Conditions' notice requirements, failed to establish a contractual or statutory basis for late payment charges, and sought legal expenses by an incompetent mechanism. The action against the second defender is incompetent as it is not directed against named representatives.

Court Disposition

Action dismissed

Orders

  • Sustains the first defender's preliminary plea (plea-in-law number 10)
  • Repels the pursuer's preliminary pleas (pleas-in-law numbers 2 & 3)