McKenzie v. Nutter [2006] ScotSC 84 (21 November 2006)

McKenzie v. Nutter [2006] ScotSC 84 (21 November 2006)

The appellant was unjustly enriched by acquiring a one half pro indiviso share in the property on the basis of an agreement to contribute financially, which she failed to do. The enrichment was unjust as the condition for the acquisition of the share did not materialise due to the appellant's bad faith. The equitable remedy is to award the respondent the appellant's one half share of the net proceeds of sale, thereby reversing the unjust enrichment.

Citation
[2006] ScotSC 84
Parties
Pursuer and Appellant: Margaret McKenzie; Defender and Respondent: David Nutter
Jurisdiction
Scotland
Judgment Date
21 November 2006
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
appeal refused
Legal Topics
Division and Sale of Property, Condictio Causa Data Causa Non Secuta, Joint Ownership, Remedies for Unjust Enrichment
Property Law Unjust Enrichment Civil Procedure Division and Sale of Property Condictio Causa Data Causa Non Secuta Joint Ownership Remedies for Unjust Enrichment

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Parties

Margaret McKenzie

Pursuer and Appellant

David Nutter

Defender and Respondent

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the appellant was unjustly enriched by taking a pro indiviso share in property without contributing as agreed
  2. 2 Whether the respondent is entitled to the appellant's one half share of the net proceeds of sale as remedy for unjust enrichment

Ratio Decidendi

The appellant was unjustly enriched by acquiring a one half pro indiviso share in the property on the basis of an agreement to contribute financially, which she failed to do. The enrichment was unjust as the condition for the acquisition of the share did not materialise due to the appellant's bad faith. The equitable remedy is to award the respondent the appellant's one half share of the net proceeds of sale, thereby reversing the unjust enrichment.

Court Disposition

appeal refused

Orders

  • Appeal refused and Sheriff's interlocutor of 9 December 2005 adhered to.
  • Pursuer and appellant found liable to defender and respondent in expenses of the appeal.