OUTLOOK FINANCE Ltd AGAINST WILLIAM LINDSAY, EXECUTOR NOMINATE IN THE ESTATES OF EUAN MCINTYRE LINDSAY [2016] ScotSC 58 (30 August 2016)

OUTLOOK FINANCE Ltd AGAINST WILLIAM LINDSAY, EXECUTOR NOMINATE IN THE ESTATES OF EUAN MCINTYRE LINDSAY [2016] ScotSC 58 (30 August 2016)

The error in the particular description of the subjects in the standard security and calling up notice did not invalidate those documents, as the property could still be sufficiently identified by reference and address. Rectification was not necessary. However, the pursuer failed to comply with the mandatory pre-action requirements under section 24A of the 1970 Act and the 2010 Order, as the information provided to the defender was insufficient. Accordingly, the action was incompetent and must be dismissed.

Citation
[2016] ScotSC 58
Parties
Pursuer: Outlook Finance Limited; Defender: William Lindsay, executor nominate in the estates of Euan McIntyre Lindsay
Jurisdiction
Scotland
Judgment Date
30 August 2016
Procedural Posture
Summary Application (rectification and Enforcement of Standard Security) / Judgment After Debate on Competency and Merits
Outcome
Action dismissed
Legal Topics
Rectification of Documents, Standard Securities, Calling Up Notice, Pre Action Requirements, Summary Application Procedure, Competency of Remedies
Property Law Civil Procedure Banking and Finance Rectification of Documents Standard Securities Calling Up Notice Pre Action Requirements Summary Application Procedure +1 more

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Parties

Outlook Finance Limited

Pursuer

William Lindsay, executor nominate in the estates of Euan McIntyre Lindsay

Defender

Procedural Posture

Summary Application (rectification and Enforcement of Standard Security) / Judgment After Debate on Competency and Merits

Legal Issues

  1. 1 Whether an error in the description of subjects in a standard security and calling up notice invalidates those documents
  2. 2 Whether rectification of such documents is necessary and competent in summary application proceedings
  3. 3 Whether pre-action requirements under the Conveyancing and Feudal Reform (Scotland) Act 1970 and related regulations were met

Ratio Decidendi

The error in the particular description of the subjects in the standard security and calling up notice did not invalidate those documents, as the property could still be sufficiently identified by reference and address. Rectification was not necessary. However, the pursuer failed to comply with the mandatory pre-action requirements under section 24A of the 1970 Act and the 2010 Order, as the information provided to the defender was insufficient. Accordingly, the action was incompetent and must be dismissed.

Court Disposition

Action dismissed

Orders

  • Repels the defenders’ pleas-in-law 1 and 3
  • Sustains the defender’s plea-in-law 5