Abacus Trustees (Guersney) Ltd & Anor v Stewart & Ors [1999] ScotCS 60 (26 February 1999)

Abacus Trustees (Guersney) Ltd & Anor v Stewart & Ors [1999] ScotCS 60 (26 February 1999)

The court held that the defect in title to sue caused by not including all necessary pursuers at the outset could be cured by amendment under the current Rules of Court, and that the pursuers' averments of loss were sufficiently relevant and specific to go to proof. The contract could be enforced against the first defenders despite their prior disposition of the property, as the obligation was based on the contract terms, not on their current title.

Citation
[1999] ScotCS 60
Parties
Pursuer: Abacus Trustees (Guernsey) Limited; Pursuer: George Alan More Nisbett; First Defender: John Cunningham Stewart; First Defender: Patricia Stewart; Second Defender: The Royal Bank of Scotland Trust Company (Guernsey) Limited
Jurisdiction
Scotland
Judgment Date
26 February 1999
Procedural Posture
Civil / Procedure Roll (pleadings Debate) Before Proof
Outcome
Proof before answer allowed, with certain averments excluded from probation; some pleas repelled, others reserved.
Legal Topics
Title to Sue, Implementation of Missives, Trustee Identity, Damages for Breach of Contract, Rectification of Trust Deeds, Tax Avoidance Schemes
Contract Law Trusts Law Property Law Title to Sue Implementation of Missives Trustee Identity Damages for Breach of Contract Rectification of Trust Deeds +1 more

Case Brief

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Parties

Abacus Trustees (Guernsey) Limited

Pursuer

George Alan More Nisbett

Pursuer

John Cunningham Stewart

First Defender

Patricia Stewart

First Defender

The Royal Bank of Scotland Trust Company (Guernsey) Limited

Second Defender

Procedural Posture

Civil / Procedure Roll (pleadings Debate) Before Proof

Legal Issues

  1. 1 Whether all necessary parties were pursuers at commencement and if defect can be cured by amendment
  2. 2 Whether the pursuers have title to sue as trustees under the relevant trusts
  3. 3 Whether the contract can be enforced against sellers who had already disponed the property

Ratio Decidendi

The court held that the defect in title to sue caused by not including all necessary pursuers at the outset could be cured by amendment under the current Rules of Court, and that the pursuers' averments of loss were sufficiently relevant and specific to go to proof. The contract could be enforced against the first defenders despite their prior disposition of the property, as the obligation was based on the contract terms, not on their current title.

Court Disposition

Proof before answer allowed, with certain averments excluded from probation; some pleas repelled, others reserved.

Orders

  • Plea-in-law 2 for first defenders repelled
  • Plea-in-law 3 for first defenders reserved