COATBRIDGE RETAIL NO. 1 LIMITED v. JEROME OLIVER [2010] ScotSC 77 (20 April 2010)

COATBRIDGE RETAIL NO. 1 LIMITED v. JEROME OLIVER [2010] ScotSC 77 (20 April 2010)

The defender failed to aver acts specifically referable to the alleged variation of the lease and failed to aver that such acts were with the knowledge and acquiescence of the pursuers. As such, the statutory exception to the writing requirement under the 1995 Act did not apply, and the pursuers were entitled to withdraw from any informal variation. The defender's case on variation was irrelevant, entitling the pursuers to declarator and payment as craved.

Citation
[2010] ScotSC 77
Parties
Pursuer: Coatbridge Retail No. 1 Limited; Defender: Jerome Oliver
Jurisdiction
Scotland
Judgment Date
20 April 2010
Procedural Posture
Civil (commercial Lease Dispute) / Interlocutory Judgment Following Debate on Preliminary Pleas
Outcome
Pursuers' preliminary pleas sustained in part; defender's relevant averments excluded from probation; decree of declarator granted in favour of pursuers; decree for payment granted in respect of certain craves; proof before answer allowed on remaining disputed sums; defender found liable in expenses of the debate.
Legal Topics
Variation of Lease, Requirements of Writing (scotland) Act 1995, Personal Bar, Break Clause, Declarator, Payment of Arrears
Property Law Contract Law Landlord and Tenant Variation of Lease Requirements of Writing (scotland) Act 1995 Personal Bar Break Clause Declarator +1 more

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Parties

Coatbridge Retail No. 1 Limited

Pursuer

Jerome Oliver

Defender

Procedural Posture

Civil (commercial Lease Dispute) / Interlocutory Judgment Following Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether an alleged informal variation of a registered lease is valid without compliance with the Requirements of Writing (Scotland) Act 1995
  2. 2 Whether the defender's reliance on the alleged variation meets the statutory exception to the writing requirement under section 1(3) and (4) of the 1995 Act
  3. 3 Whether the defender's pleadings are sufficient to bar the pursuers from withdrawing from the alleged variation

Ratio Decidendi

The defender failed to aver acts specifically referable to the alleged variation of the lease and failed to aver that such acts were with the knowledge and acquiescence of the pursuers. As such, the statutory exception to the writing requirement under the 1995 Act did not apply, and the pursuers were entitled to withdraw from any informal variation. The defender's case on variation was irrelevant, entitling the pursuers to declarator and payment as craved.

Court Disposition

Pursuers' preliminary pleas sustained in part; defender's relevant averments excluded from probation; decree of declarator granted in favour of pursuers; decree for payment granted in respect of certain craves; proof before answer allowed on remaining disputed sums; defender found liable in expenses of the debate.

Orders

  • Sustains pursuers' plea in law number 1 to the extent of excluding from probation the defender's averments in Answer 9 relating to variation of the lease and Answers 10 to 20 inclusive.
  • Sustains pursuers' pleas in law numbers 6, 7 and 8.