Solicitors Estate Agency (Glasgow) Ltd v MacIver [1992] ScotCS CSIH_1 (27 March 1992)

Solicitors Estate Agency (Glasgow) Ltd v MacIver [1992] ScotCS CSIH_1 (27 March 1992)

The sheriff's exercise of discretion under section 18(6) of the Estate Agents Act 1979 was not materially affected by any misdirection regarding the breach of section 18(2)(a), as all relevant facts, including the undisclosed discount and method of calculation, were considered. The sheriff principal was not entitled to substitute his own discretion for that of the sheriff. The contract is enforceable subject to a reduction in the sum payable as compensation for prejudice suffered by the defender.

Citation
[1992] ScotCS CSIH_1
Parties
Pursuer: Solicitors Estate Agency (Glasgow) Ltd; Defender: MacIver
Jurisdiction
Scotland
Judgment Date
27 March 1992
Procedural Posture
Civil Appeal / Appeal to Inner House of Court of Session
Outcome
Appeal allowed. Sheriff principal's interlocutors recalled. Sheriff's interlocutors affirmed.
Legal Topics
Estate Agency, Remuneration Disclosure, Breach of Statutory Duty, Enforcement of Contracts, Judicial Discretion
Contract Law Agency Law Estate Agency Remuneration Disclosure Breach of Statutory Duty Enforcement of Contracts Judicial Discretion

Case Brief

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Parties

Solicitors Estate Agency (Glasgow) Ltd

Pursuer

MacIver

Defender

Procedural Posture

Civil Appeal / Appeal to Inner House of Court of Session

Legal Issues

  1. 1 Whether the pursuers breached their obligations under section 18(2)(a) and (d) of the Estate Agents Act 1979 by failing to disclose remuneration and method of calculation of advertising outlays to the defender.
  2. 2 Whether such breach renders the contract unenforceable and if so, whether the court should exercise its discretion to enforce the contract under section 18(6) of the Act.

Ratio Decidendi

The sheriff's exercise of discretion under section 18(6) of the Estate Agents Act 1979 was not materially affected by any misdirection regarding the breach of section 18(2)(a), as all relevant facts, including the undisclosed discount and method of calculation, were considered. The sheriff principal was not entitled to substitute his own discretion for that of the sheriff. The contract is enforceable subject to a reduction in the sum payable as compensation for prejudice suffered by the defender.

Court Disposition

Appeal allowed. Sheriff principal's interlocutors recalled. Sheriff's interlocutors affirmed.

Orders

  • The interlocutors of the sheriff principal dated 24 April 1990 and 11 May 1990 are recalled.
  • The interlocutors of the sheriff dated 20 December 1989 and 18 January 1990 are affirmed.