Gardiner, Re [2001] ScotCS 272 (23 November 2001)

Gardiner, Re [2001] ScotCS 272 (23 November 2001)

The respondents were not entitled to enforce calling-up notices and proceed to sale based solely on their certificate of debt without prior judicial determination of the sum due. The contract documents did not provide for the creditor's certificate to be conclusive evidence of debt, nor did they entitle respondents to dictate the sum and interest without inquiry or validation. There was a genuine dispute as to the sums and obligations due, and the petitioners took timely steps to seek suspension before default was constituted.

Citation
[2001] ScotCS 272
Parties
Petitioner: John Brian McMeans Gardiner; Petitioner: Mrs Sheena Gray Gardiner; Respondent: Jacques Vert plc
Jurisdiction
Scotland
Judgment Date
23 November 2001
Procedural Posture
Petition for Suspension / Interim Suspension and Leave to Reclaim
Outcome
interim suspension granted; leave to reclaim granted
Legal Topics
Standard Security, Calling Up Notice, Suspension, Heritable Property, Interest on Debt, Contractual Interpretation
Property Law Contract Law Civil Procedure Standard Security Calling Up Notice Suspension Heritable Property Interest on Debt +1 more

Case Brief

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Parties

John Brian McMeans Gardiner

Petitioner

Mrs Sheena Gray Gardiner

Petitioner

Jacques Vert plc

Respondent

Procedural Posture

Petition for Suspension / Interim Suspension and Leave to Reclaim

Legal Issues

  1. 1 Whether the respondents were entitled to enforce calling-up notices and proceed to sale based on their certificate of debt without prior judicial determination.
  2. 2 Whether the contract documents provided a proper basis for the sums and interest demanded.
  3. 3 Whether the petitioners were entitled to retention based on their counterclaim for damages.

Ratio Decidendi

The respondents were not entitled to enforce calling-up notices and proceed to sale based solely on their certificate of debt without prior judicial determination of the sum due. The contract documents did not provide for the creditor's certificate to be conclusive evidence of debt, nor did they entitle respondents to dictate the sum and interest without inquiry or validation. There was a genuine dispute as to the sums and obligations due, and the petitioners took timely steps to seek suspension before default was constituted.

Court Disposition

interim suspension granted; leave to reclaim granted

Orders

  • Interim suspension of certificate and calling-up notices granted.
  • Petitions allowed to be amended to cover any procedure following service of calling-up notices.