Brown v. Stewart & Anor [2008] ScotCS CSOH_155 (12 November 2008)

Brown v. Stewart & Anor [2008] ScotCS CSOH_155 (12 November 2008)

The second defender failed to intimate intention to proceed with her defence as required by Rule of Court 30.2(2), and no substantive defence was pled. The court exercised its discretion to grant decree by default for reduction of the disposition and rectification of the Land Register, as the pursuer appeared entitled to the remedies sought and the second defender's explanations and actions did not justify further delay.

Citation
[2008] ScotCS CSOH_155
Parties
Pursuer: Gillies Brown; First Defender: James West Stewart; Second Defender: Margaret Stewart; Third Defender: Permanent Trustee of James West Stewart
Jurisdiction
Scotland
Judgment Date
12 November 2008
Procedural Posture
Civil Action for Reduction and Rectification of Property Disposition / Motion for Decree by Default After Failure to Intimate Intention to Proceed With Defence
Outcome
Decree granted against the second defender in terms of the first and third conclusions of the summons. Second defender found liable in expenses to the pursuer.
Legal Topics
Reduction of Disposition, Alienation by Debtor, Rectification of Land Register, Decree by Default, Legal Aid Eligibility
Property Law Bankruptcy Law Civil Procedure Reduction of Disposition Alienation by Debtor Rectification of Land Register Decree by Default Legal Aid Eligibility

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Parties

Gillies Brown

Pursuer

James West Stewart

First Defender

Margaret Stewart

Second Defender

Permanent Trustee of James West Stewart

Third Defender

Procedural Posture

Civil Action for Reduction and Rectification of Property Disposition / Motion for Decree by Default After Failure to Intimate Intention to Proceed With Defence

Legal Issues

  1. 1 Whether the disposition of property by James West Stewart to Margaret Stewart was a challengeable alienation under section 34(1) of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether decree by default should be granted due to the second defender's failure to intimate intention to proceed with defence

Ratio Decidendi

The second defender failed to intimate intention to proceed with her defence as required by Rule of Court 30.2(2), and no substantive defence was pled. The court exercised its discretion to grant decree by default for reduction of the disposition and rectification of the Land Register, as the pursuer appeared entitled to the remedies sought and the second defender's explanations and actions did not justify further delay.

Court Disposition

Decree granted against the second defender in terms of the first and third conclusions of the summons. Second defender found liable in expenses to the pursuer.

Orders

  • Reduction of the disposition by James West Stewart and Margaret Stewart in favour of Margaret Stewart and her assignees, disponees and executors of 27 West End, Kinglassie, Fife, KY5 0XG.
  • Order to rectify the Land Register for Fife (FFE64534) by deleting the entry in the proprietorship section and substituting 'James West Stewart and Margaret Stewart, both 27 West End, Kinglassie, equally between them'.