Aberdeen Rubber Ltd v Knowles & Sons (Fruiterers) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Mackay of Clashfern L.C.,Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Mustill,Lord Lloyd of Berwick |
| Judgment Date | 24 May 1995 |
| Judgment citation (vLex) | [1995] UKHL J0524-1 |
| Date | 24 May 1995 |
| Court | House of Lords |
| Docket Number | No. 2 |
[1995] UKHL J0524-1
House of Lords
Lord Chancellor
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Mustill
Lord Lloyd of Berwick
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
I have the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. For the reasons which he gives, I too, would dismiss the appeal.
My Lords,
This appeal is concerned with a contract for the purchase and sale of heritable property in Aberdeen, where the disposition following upon the contract conveyed to the purchaser an area of ground additional to the subjects which were comprised in the missives of sale.
On 18 April 1991 the appellants (to whom I shall refer to as "Knowles") offered to purchase from the respondents (hereinafter referred to as "Aberdeen Rubber") workshops and storage yards situated on the south side of Greenbank Place in the City of Aberdeen, at the price of £600.000. The subjects of sale were described by reference to a schedule of particulars published by a firm of estate agents to whom the offer was addressed. These particulars included a plan upon which the subjects of sale were outlined. The subjects consisted of four parcels each held on a separate title. The offer, which was prepared by Knowles's solicitors and by them adopted as holograph and signed, contained an extensive list of conditions, including that it should be open for acceptance only until 5 p.m. on 19 April 1991. That deadline passed without any acceptance, but it seems that the parties entered into negotiations for on 27 June 1991 Aberdeen Rubber's solicitors sent to Knowles's solicitors certain title deeds and also a draft deed of restriction of a standard security affecting the four areas of ground comprised in the subjects offered to be purchased. This draft apparently also bore to disburden a fifth area of ground situated not at Greenbank Place but on another street some distance north of it, namely Greenwell Road. On 23 July 1991 Knowles's solicitors sent to Aberdeen Rubber's solicitors a draft disposition along with the title deeds they had received and the draft deed of restriction. The covering letter raised various points and concluded:
"Finally, in relation to the draft disposition we have included all five areas of ground as provided for in your deed of restriction. Perhaps you could check and confirm that it is your clients' intention to have all the areas of ground included in the sale. We await hearing from you."
On 24 July 1991 Aberdeen Rubber's solicitors replied saying that they would send the revised disposition shortly. After dealing with other matters the letter concluded:
"Finally, we can confirm that it is our clients' intention to include all five areas of ground in the sale to your clients."
On 20 September 1991 Aberdeen Rubber's solicitors sent to Knowles's solicitors a letter adopted as holograph accepting their offer dated 18 April 1991 on behalf of Knowles to purchase "the workshops and storage yards situated at Greenbank Place, East Tullos, Aberdeen, described in your offer" subject to certain qualifications, which included a reduction of the price to £590,000. On the same day Knowles's solicitors replied with a letter adopted as holograph stating:
"On behalf of and as instructed by our clients Knowles & Sons (Fruiterers) Limited we hereby accept the qualifications contained in your letter to us of 20 September 1991 and those following upon our offer of 18 April 1991 all with respect to subjects at Greenbank Place, East Tullos, Aberdeen. We therefore now hold the bargain between our respective clients as concluded."
On 24 September 1991 Aberdeen Rubber executed in favour of Knowles a disposition which bore to convey not only the four areas of ground at Greenbank Place on which the workshops and storage yards were situated but also the fifth discontiguous area of ground lying some distance to the north of Greenbank Place on Greenwell Road.
In that state of affairs Aberdeen Rubber raised an action against Knowles in the Court of Session, the principal conclusion of the Summons being for reduction of that part of the disposition of 24 September 1991 which bore to convey the area of ground at Greenwell Road. Aberdeen Rubber founded upon the missives of 18 April and 20 September 1991 and pleaded that the disposition, having as a result of material error failed to give effect to the agreement between the parties as contained in the missives and having disponed heritable subjects which the parties had not agreed to buy and sell, should be reduced to the extent concluded for. Knowles by their defence founded on the informal letters of 23 and 24 July 1991 and averred:
"It was the common intention of both parties that the subjects to be included in the conveyance to the defenders comprised all five areas of ground to which the pursuers had title, all as described in the said disposition in the pursuers (sic) favour � Said disposition superseded the missives between the parties."
Both parties tabled pleas to the relevancy.
A procedure roll debate took place before Lord Cameron of Lochbroom 1994 S.L.T. 176, who on 5 May 1993 allowed a proof before answer. Aberdeen Rubber reclaimed, and on 18 March 1994 the First Division (Lord President Hope and Lord Weir, Lord Coulsfield dissenting 1994 S.L.T. 662) recalled the Lord Ordinary's interlocutor and granted reduction de plano of the disposition of 24 September 1991 to the extent concluded for. Knowles now appeal to your Lordships' House.
The only question at issue is whether the facts pleaded and admitted by either party are sufficient to discharge the onus which is incumbent on Aberdeen Rubber to establish that the disposition of 24 September 1991, as a result of common error, did not give effect to the true intention of the parties. In Anderson v. Lambie 1954 S.C. (H.L.) 43 this House held, reversing the decision of the First Division, that a conveyance of heritable property might be reduced upon that ground, but stressed that the onus resting upon the party who sought to do so was a heavy one. Lord Reid said, at p.57:
"In my judgment, if two parties both intend their contract to deal with one thing and by mistake the contract or conveyance is so written out that it deals with another, then as a general rule the written document cannot stand if either party attacks it. That appears to me to be supported both by authority and by principle."
The facts in that case were that the parties had entered into formal missives for the purchase and sale of "the farm of Blairmuckhill � at present occupied by Hugh Miller & Sons." The titles to the farm included in addition to it an area of 34 acres upon which a colliery was situated. When the disposition came to be drawn there was inserted into it a description taken from a deed of 1902 of the whole lands of Blairmuckhill, which included the part later occupied by the colliery. The disposition was duly executed and recorded. Later the seller sought to reduce the disposition. He averred that both his own solicitors and those of the purchaser had by...
To continue reading
Request your trial
-
Renyana-stahl Anstalt V. Alasdair Macgregor And Another
...than mistake. Mr Lindhorst sought to support his submissions by reference to Aberdeen Rubber Ltd v Knowles and Sons (Fruiterers) Ltd 1995 SC (HL) 8, 1994 SC 440 (Inner House). That was not a rectification case, but rather a case in which the sellers sought partial reduction of a disposition......