DIANE GIBSON v. MRS SANDRA GOW & MR DEREK GOW [2014] ScotSC 52 (04 April 2014)

DIANE GIBSON v. MRS SANDRA GOW & MR DEREK GOW [2014] ScotSC 52 (04 April 2014)

The pursuer's averments, taken as a whole, are sufficient to entitle her to a factual enquiry (proof before answer) as to whether the transaction was a loan and whether repayment is due. Even if the repayment term is inadequately averred, the law presumes repayment is due on demand if a loan is proved.

Citation
[2014] ScotSC 52
Parties
Pursuer: Diane Gibson; First Defender: Mrs Sandra Gow; Second Defender: Mr Derek Gow
Jurisdiction
Scotland
Judgment Date
04 April 2014
Procedural Posture
Civil (ordinary Action) / Interlocutory Judgment on Preliminary Pleas and Amendment; Proof Before Answer Allowed
Outcome
Proof before answer allowed; amendment expenses awarded against pursuer; other expenses reserved.
Legal Topics
Loan Agreements, Repayment Terms, Oral Contracts, Presumption of Repayment, Proof Before Answer
Contract Law Civil Procedure Loan Agreements Repayment Terms Oral Contracts Presumption of Repayment Proof Before Answer

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Parties

Diane Gibson

Pursuer

Mrs Sandra Gow

First Defender

Mr Derek Gow

Second Defender

Procedural Posture

Civil (ordinary Action) / Interlocutory Judgment on Preliminary Pleas and Amendment; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the sum of £50,000 was a loan or a gift
  2. 2 Whether the pursuer's pleadings are sufficient to entitle her to proof before answer
  3. 3 Whether the terms of repayment were adequately averred

Ratio Decidendi

The pursuer's averments, taken as a whole, are sufficient to entitle her to a factual enquiry (proof before answer) as to whether the transaction was a loan and whether repayment is due. Even if the repayment term is inadequately averred, the law presumes repayment is due on demand if a loan is proved.

Court Disposition

Proof before answer allowed; amendment expenses awarded against pursuer; other expenses reserved.

Orders

  • Pursuer found liable to defender for expenses occasioned by amendment procedure; account of expenses to be taxed and reported by Auditor of Court.
  • Proof before answer allowed on parties' averments.