Little Cumbrae Estate Ltd v Royalat 1 Ltd [2014] ScotCS CSOH_163 (06 November 2014)

Little Cumbrae Estate Ltd v Royalat 1 Ltd [2014] ScotCS CSOH_163 (06 November 2014)

The motion to recall the decree in absence is competent because no irrevocable enforcement step has been taken; the dispensing power should be exercised due to ongoing negotiations, lack of intimation of the motion for decree in absence, and excusable conduct by the defender. Substantial justice requires that the real issues between the parties be tried.

Citation
[2014] ScotCS CSOH_163
Parties
Pursuer: Little Cumbrae Estate Ltd; Defender: Rolyat 1 Ltd
Jurisdiction
Scotland
Judgment Date
06 November 2014
Procedural Posture
Commercial Lease Dispute / Motion to Recall Decree in Absence
Outcome
Motion to recall decree in absence granted; decree recalled; defences allowed to be lodged.
Legal Topics
Recall of Decree in Absence, Dispensing Power, Breach of Lease, Structural Alterations, Court Procedure
Civil Procedure Contract Law Property Law Recall of Decree in Absence Dispensing Power Breach of Lease Structural Alterations Court Procedure

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Parties

Little Cumbrae Estate Ltd

Pursuer

Rolyat 1 Ltd

Defender

Procedural Posture

Commercial Lease Dispute / Motion to Recall Decree in Absence

Legal Issues

  1. 1 Is the motion to recall the decree in absence competent after extraction and diligence?
  2. 2 Should the court exercise its dispensing power to waive the seven-day time limit for recall of decree in absence?

Ratio Decidendi

The motion to recall the decree in absence is competent because no irrevocable enforcement step has been taken; the dispensing power should be exercised due to ongoing negotiations, lack of intimation of the motion for decree in absence, and excusable conduct by the defender. Substantial justice requires that the real issues between the parties be tried.

Court Disposition

Motion to recall decree in absence granted; decree recalled; defences allowed to be lodged.

Orders

  • Decree in absence recalled.
  • Defender allowed to lodge defences.