HOMECARE CONTRACTS (SCOTLAND) LTD v. SCOTTISH MIDLAND CO-OPERATIVE SOCIETY LTD [1999] ScotSC 14 (5th May, 1999)

HOMECARE CONTRACTS (SCOTLAND) LTD v. SCOTTISH MIDLAND CO-OPERATIVE SOCIETY LTD [1999] ScotSC 14 (5th May, 1999)

The sheriff erred in sustaining the defenders' plea to relevancy regarding the water damage claim; clause 6 is not so defective as to be ignored, but its effect cannot be determined without proof of facts, including materiality of damage and timing of disposition. The harling claim also requires proof before answer as the entitlement to contribution for necessary repairs by a co-proprietor depends on factual circumstances.

Citation
[1999] ScotSC 14
Parties
Pursuer: Homecare Contracts (Scotland) Limited; Defender: Scottish Midland Co-operative Society Limited
Jurisdiction
Scotland
Procedural Posture
Civil / Appeal From Interlocutor; Remit to Proof Before Answer
Outcome
Appeal allowed; sheriff's interlocutor recalled; proof before answer allowed on all averments; expenses reserved.
Legal Topics
Interpretation of Missives, Co Proprietor Liability for Repairs, Risk and Insurance in Property Transactions, Necessary Repairs to Common Property
Contract Law Property Law Interpretation of Missives Co Proprietor Liability for Repairs Risk and Insurance in Property Transactions Necessary Repairs to Common Property

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Parties

Homecare Contracts (Scotland) Limited

Pursuer

Scottish Midland Co-operative Society Limited

Defender

Procedural Posture

Civil / Appeal From Interlocutor; Remit to Proof Before Answer

Legal Issues

  1. 1 Whether clause 6 of the missives excludes the pursuers' claim for water damage repairs
  2. 2 Whether the defenders are liable for a share of the cost of repairs to harling as co-proprietors
  3. 3 Meaning of 'necessary' repairs in the context of common property

Ratio Decidendi

The sheriff erred in sustaining the defenders' plea to relevancy regarding the water damage claim; clause 6 is not so defective as to be ignored, but its effect cannot be determined without proof of facts, including materiality of damage and timing of disposition. The harling claim also requires proof before answer as the entitlement to contribution for necessary repairs by a co-proprietor depends on factual circumstances.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; proof before answer allowed on all averments; expenses reserved.

Orders

  • Recall of interlocutor of 18 December 1998
  • Allow proof before answer of all averments