Aberdeen City Council v. Hendry [[2006] ScotSC 4 (14 February 2006)

Aberdeen City Council v. Hendry [[2006] ScotSC 4 (14 February 2006)

The sheriff erred in law by granting decree for repossession under rule 8.2(5) at a hearing that was neither the calling date nor a continued hearing as defined by the rules; therefore, the decree was not validly granted.

Citation
[2006] ScotSC 4
Parties
Pursuer/respondent: Aberdeen City Council; Defender/appellant: Susan Hendry
Jurisdiction
Scotland
Judgment Date
14 February 2006
Procedural Posture
Civil Appeal / Appeal From Sheriff's Decree
Outcome
appeal allowed; decree recalled; no expenses due to or by either party
Legal Topics
Repossession, Decree in Absence, Procedural Fairness
Housing Law Civil Procedure Repossession Decree in Absence Procedural Fairness

Case Brief

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Parties

Aberdeen City Council

Pursuer/respondent

Susan Hendry

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff's Decree

Legal Issues

  1. 1 Whether the sheriff was entitled to grant decree for repossession under rule 8.2(5) when the hearing was not the calling date nor a continued hearing under rule 8.2(3)
  2. 2 Whether the requirements of rule 8.2(5) were met in the circumstances of the hearing on 10 February 2005

Ratio Decidendi

The sheriff erred in law by granting decree for repossession under rule 8.2(5) at a hearing that was neither the calling date nor a continued hearing as defined by the rules; therefore, the decree was not validly granted.

Court Disposition

appeal allowed; decree recalled; no expenses due to or by either party

Orders

  • Appeal allowed
  • Decree pronounced by the sheriff on 10 February 2005 recalled