Stewart Milne Group Ltd v Anderson & Anor [2017] ScotCS CSOH_94 (30 June 2017)

Stewart Milne Group Ltd v Anderson & Anor [2017] ScotCS CSOH_94 (30 June 2017)

The defenders' counterclaim under clause 8.7.5 is premature because, under the contract, no debt arises until after completion of the remedial works and the issuance of a certificate or statement under clause 8.7.4. The claim is for a future or contingent debt and cannot proceed at this stage.

Citation
[2017] ScotCS CSOH_94
Parties
Pursuer: Stewart Milne Group Limited; Defender: Ruth Anne Anderson; Defender: Graeme David Waddell Anderson
Jurisdiction
Scotland
Judgment Date
30 June 2017
Procedural Posture
Commercial Building Contract Dispute / Debate on Preliminary Issues Before Proof
Outcome
Counterclaim under clause 8.7.5 held premature; further procedure to be discussed; questions of expenses reserved.
Legal Topics
Termination of Contract, Prematurity of Counterclaim, Building Contract Disputes, Certification and Payment Mechanisms
Contract Law Construction Law Termination of Contract Prematurity of Counterclaim Building Contract Disputes Certification and Payment Mechanisms

Case Brief

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Parties

Stewart Milne Group Limited

Pursuer

Ruth Anne Anderson

Defender

Graeme David Waddell Anderson

Defender

Procedural Posture

Commercial Building Contract Dispute / Debate on Preliminary Issues Before Proof

Legal Issues

  1. 1 Whether the defenders' counterclaim under clause 8.7.5 of the building contract is premature
  2. 2 Whether a certificate or statement under clause 8.7.4 is a precondition to a claim for payment by the employer
  3. 3 Whether the principal action and counterclaim should be heard together or separately

Ratio Decidendi

The defenders' counterclaim under clause 8.7.5 is premature because, under the contract, no debt arises until after completion of the remedial works and the issuance of a certificate or statement under clause 8.7.4. The claim is for a future or contingent debt and cannot proceed at this stage.

Court Disposition

Counterclaim under clause 8.7.5 held premature; further procedure to be discussed; questions of expenses reserved.

Orders

  • Case to be put out by order for further procedure discussion.
  • Questions of expenses reserved.