McGraddie v McGraddie & Anor [2010] ScotCS CSOH_60 (07 May 2010)

McGraddie v McGraddie & Anor [2010] ScotCS CSOH_60 (07 May 2010)

The first defender, as agent, is contractually bound to procure and convey title to the pursuer for the properties purchased with the pursuer's funds, subject to reimbursement of any shortfall. The second defender, though not contractually bound, is liable in unjustified enrichment for her role in the misappropriation and retention of the property and funds. Where conveyance is not possible, a monetary award is appropriate. The pursuer is entitled to decree for conveyance or, failing that, repayment of the sum advanced with interest.

Citation
[2010] ScotCS CSOH_60
Parties
Pursuer: David McGraddie; First Defender: Rodger John McGraddie; Second Defender: Lorna Esther Green
Jurisdiction
Scotland
Judgment Date
07 May 2010
Procedural Posture
Civil / Post Proof, Remedies and Orders
Outcome
Decree granted for conveyance of properties or, failing that, payment of sums advanced with interest; expenses awarded to pursuer on party/party basis; motions for damages and additional fee refused.
Legal Topics
Agency, Constructive Trust, Unjustified Enrichment, Remedies, Conveyancing, Damages, Expenses
Property Law Trusts Law Contract Law Restitution Agency Constructive Trust Unjustified Enrichment Remedies +3 more

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Parties

David McGraddie

Pursuer

Rodger John McGraddie

First Defender

Lorna Esther Green

Second Defender

Procedural Posture

Civil / Post Proof, Remedies and Orders

Legal Issues

  1. 1 Whether the defenders are obliged to convey heritable property to the pursuer or pay damages for wrongful retention of funds and property.
  2. 2 Whether the pursuer is entitled to remedies based on agency, trust, or unjustified enrichment.
  3. 3 Whether the defenders' conduct justifies orders for conveyance, damages, or both.

Ratio Decidendi

The first defender, as agent, is contractually bound to procure and convey title to the pursuer for the properties purchased with the pursuer's funds, subject to reimbursement of any shortfall. The second defender, though not contractually bound, is liable in unjustified enrichment for her role in the misappropriation and retention of the property and funds. Where conveyance is not possible, a monetary award is appropriate. The pursuer is entitled to decree for conveyance or, failing that, repayment of the sum advanced with interest.

Court Disposition

Decree granted for conveyance of properties or, failing that, payment of sums advanced with interest; expenses awarded to pursuer on party/party basis; motions for damages and additional fee refused.

Orders

  • First defender to convey his whole right, title, and interest in 23 St Helen's Gardens to the pursuer.
  • First and second defenders to convey their whole right, title, and interest in 6 Lochrig Court to the pursuer within 28 days in return for payment of £5,738.39, failing which, payment by both defenders jointly and severally of £285,000 with interest at the judicial rate from date of decree.