Sutherland v Barry & Anor [2001] ScotCS 269 (23 November 2001)

Sutherland v Barry & Anor [2001] ScotCS 269 (23 November 2001)

Retention cannot be pleaded as a defence to contractual claims where the counterclaim is delictual and illiquid; the claims for rent, rates, insurance, and value of stock at outgo are admitted and must be compensated against each other, resulting in a balance payable to the pursuer.

Citation
[2001] ScotCS 269
Parties
Pursuer: John Sutherland; Defender: John Gerard Barry; Defender: Mrs Regina Maria Barry
Jurisdiction
Scotland
Judgment Date
23 November 2001
Procedural Posture
Civil / Opinion Following Debate on Relevancy of Defences and Counterclaims
Outcome
Claims for rent, rates, insurance, and value of stock at outgo admitted; debts to be compensated; balance payable to pursuer; case put out By Order for further discussion.
Legal Topics
Retention, Compensation of Debts, Fraudulent Misrepresentation, Counterclaim, Lease Obligations
Contract Law Delict Civil Procedure Retention Compensation of Debts Fraudulent Misrepresentation Counterclaim Lease Obligations

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Parties

John Sutherland

Pursuer

John Gerard Barry

Defender

Mrs Regina Maria Barry

Defender

Procedural Posture

Civil / Opinion Following Debate on Relevancy of Defences and Counterclaims

Legal Issues

  1. 1 Whether retention can be pleaded against contractual claims when the counterclaim is delictual and illiquid
  2. 2 Whether payment of rent, rates, and insurance under a lease can be withheld pending determination of a fraud claim
  3. 3 Whether the value of stock at outgo is a relevant counterpart for retention

Ratio Decidendi

Retention cannot be pleaded as a defence to contractual claims where the counterclaim is delictual and illiquid; the claims for rent, rates, insurance, and value of stock at outgo are admitted and must be compensated against each other, resulting in a balance payable to the pursuer.

Court Disposition

Claims for rent, rates, insurance, and value of stock at outgo admitted; debts to be compensated; balance payable to pursuer; case put out By Order for further discussion.

Orders

  • Case put out By Order for discussion of means of giving effect to findings and future procedure for remaining issues.