Goudie v Mulholland (t/a Artlink) & Anor [1999] ScotCS 276 (22 November 1999)

Goudie v Mulholland (t/a Artlink) & Anor [1999] ScotCS 276 (22 November 1999)

The sheriff erred in granting decree before the minuters' application to enter the process and assert a lien was heard; the loss of possession of the paintings by the defender was not voluntary but induced by improper means, so any lien was not lost; the minuters' motion for leave to appeal late was competent as their application to become parties was pending and had been frustrated by the pursuer's actions.

Citation
[1999] ScotCS 276
Parties
Pursuer and Respondent: Alexander Goudie; Defender: William Mulholland t/a Artlink; Third Party Minuters and Appellants: Artbank (Scotland) Limited
Jurisdiction
Scotland
Judgment Date
22 November 1999
Procedural Posture
Appeal for Third Party / Appeal From Interlocutor Refusing Late Appeal Against Decree
Outcome
Interlocutors of 23 December 1998 and 26 January 1999 recalled; appeal continued for possible application for interim possession.
Legal Topics
Lien, Interim Possession, Party Status, Enforcement of Decree
Civil Procedure Property Law Lien Interim Possession Party Status Enforcement of Decree

Case Brief

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Parties

Alexander Goudie

Pursuer and Respondent

William Mulholland t/a Artlink

Defender

Artbank (Scotland) Limited

Third Party Minuters and Appellants

Procedural Posture

Appeal for Third Party / Appeal From Interlocutor Refusing Late Appeal Against Decree

Legal Issues

  1. 1 Whether the sheriff erred in granting decree before hearing the minuters' application to enter the process and assert a lien
  2. 2 Whether the minuters' right of lien was lost by the manner of loss of possession
  3. 3 Whether the motion for leave to appeal late was competent given the minuters' procedural status

Ratio Decidendi

The sheriff erred in granting decree before the minuters' application to enter the process and assert a lien was heard; the loss of possession of the paintings by the defender was not voluntary but induced by improper means, so any lien was not lost; the minuters' motion for leave to appeal late was competent as their application to become parties was pending and had been frustrated by the pursuer's actions.

Court Disposition

Interlocutors of 23 December 1998 and 26 January 1999 recalled; appeal continued for possible application for interim possession.

Orders

  • Recall of interlocutor of sheriff dated 23 December 1998
  • Recall of interlocutor of sheriff principal dated 26 January 1999