Nabb & Ors c. Kirkby & Anor [2006] ScotSC 94 (02 November 2006)

Nabb & Ors c. Kirkby & Anor [2006] ScotSC 94 (02 November 2006)

The Sheriff Principal held that the crave for rectification could only be determined after proof, as there were factual disputes regarding delivery, the effect of correspondence, personal bar, waiver, and whether there was fraud or carelessness. The Sheriff Principal agreed with the Sheriff that the claim for violent profits was irrelevant and lacking in specification, as the respondents' possession was not shown to be in bad faith. The Sheriff Principal refused the appeal except to the extent of deleting the averments in condescendence 4, deleting the first crave, and repelling the third and fourth pleas in law of the appellants.

Citation
[2006] ScotSC 94
Parties
Pursuers and Appellants: Mrs Lucille Mary Nabb, Stewart Douglas and Mrs Helen Smith Nabb; Defenders and Respondents: Paul William Kirkby and Mrs Jayne Louise Kirkby
Jurisdiction
Scotland
Judgment Date
02 November 2006
Procedural Posture
Civil Appeal / Appeal Against Interlocutor of 24 February 2006
Outcome
Appeal sustained in part and refused quoad ultra.
Legal Topics
Rectification of Land Register, Delivery of Dispositions, Mutuality of Contract, Fraud and Carelessness in Registration, Violent Profits, Personal Bar and Waiver
Property Law Contract Law Land Registration Rectification of Land Register Delivery of Dispositions Mutuality of Contract Fraud and Carelessness in Registration Violent Profits +1 more

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Parties

Mrs Lucille Mary Nabb, Stewart Douglas and Mrs Helen Smith Nabb

Pursuers and Appellants

Paul William Kirkby and Mrs Jayne Louise Kirkby

Defenders and Respondents

Procedural Posture

Civil Appeal / Appeal Against Interlocutor of 24 February 2006

Legal Issues

  1. 1 Whether the Sheriff erred in allowing a proof before answer in respect of the appellants' crave for rectification of the Land Register rather than granting decree de plano
  2. 2 Whether the Sheriff erred in dismissing the appellants' claim for violent profits
  3. 3 Whether the Sheriff erred in refusing to dismiss the respondents' counterclaim for damages for breach of contract based on fraudulent or negligent misrepresentations

Ratio Decidendi

The Sheriff Principal held that the crave for rectification could only be determined after proof, as there were factual disputes regarding delivery, the effect of correspondence, personal bar, waiver, and whether there was fraud or carelessness. The Sheriff Principal agreed with the Sheriff that the claim for violent profits was irrelevant and lacking in specification, as the respondents' possession was not shown to be in bad faith. The Sheriff Principal refused the appeal except to the extent of deleting the averments in condescendence 4, deleting the first crave, and repelling the third and fourth pleas in law of the appellants.

Court Disposition

Appeal sustained in part and refused quoad ultra.

Orders

  • Sustains the appeal insofar as directed against the Sheriff sustaining the defenders' first plea in law to the extent of deleting the pursuers' averments in condescendence 4 as irrelevant and lacking in specification, by deletion of the pursuers' first crave, and by repelling the pursuers' third and fourth pleas in...
  • Quoad ultra refuses the appeal.