Shoprite Group Plc v Kwik Save Stores Ltd [1999] ScotCS 8 (8 January 1999)

Shoprite Group Plc v Kwik Save Stores Ltd [1999] ScotCS 8 (8 January 1999)

The tendering of documents by Shoprite did not constitute a transfer of interest in accordance with the contract because unresolved questions regarding encumbrances remained at the expiry of the 12-month period. The contract required all such questions to be resolved before transfer could occur. Therefore, the property became excluded by operation of section 10.5.3, and there was no contractual basis for subsequent reinstatement by expert determination.

Citation
[1999] ScotCS 8
Parties
Pursuer and Respondent: Shoprite Group plc; Defender and Reclaimer: Kwik Save Stores Limited
Jurisdiction
Scotland
Judgment Date
08 January 1999
Procedural Posture
Civil Commercial Contract Dispute / Reclaiming Motion (appeal)
Outcome
action dismissed
Legal Topics
Interpretation of Commercial Contracts, Transfer of Leasehold Property, Excluded Property Provisions, Encumbrances and Completion Conditions
Contract Law Property Law Interpretation of Commercial Contracts Transfer of Leasehold Property Excluded Property Provisions Encumbrances and Completion Conditions

Case Brief

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Parties

Shoprite Group plc

Pursuer and Respondent

Kwik Save Stores Limited

Defender and Reclaimer

Procedural Posture

Civil Commercial Contract Dispute / Reclaiming Motion (appeal)

Legal Issues

  1. 1 Whether the tendering of documents by Shoprite constituted a 'transfer' of the Sauchiehall Street property within the meaning of the contract before expiry of the 12-month period from Principal Completion Date
  2. 2 Whether unresolved disputes regarding encumbrances prevent transfer under the contract
  3. 3 Whether a property excluded by operation of the contract can be reinstated by subsequent expert determination

Ratio Decidendi

The tendering of documents by Shoprite did not constitute a transfer of interest in accordance with the contract because unresolved questions regarding encumbrances remained at the expiry of the 12-month period. The contract required all such questions to be resolved before transfer could occur. Therefore, the property became excluded by operation of section 10.5.3, and there was no contractual basis for subsequent reinstatement by expert determination.

Court Disposition

action dismissed

Orders

  • reclaiming motion granted
  • interlocutor of the Lord Ordinary dated 14 March 1997 recalled