Agro Invest Overseas Limited Against Stewart Milne Group Limited And Agro Invest Overseas Limited Against Morgan Associates And Agro Invest Overseas Limited Against Robert Trembath T/a Trembath Associates
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2018] CSOH 120 |
| Date | 18 December 2018 |
| Docket Number | CA85/16, CA132/16, CA131/16 |
| Court | Court of Session |
| Published date | 18 December 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 120
CA85/16, CA132/16, CA131/16
OPINION OF LORD CLARK
In the causes
AGRO INVEST OVERSEAS LIMITED
Pursuer
against
STEWART MILNE GROUP LIMITED
And
Defender
AGRO INVEST OVERSEAS LIMITED
Pursuer
against
MORGAN ASSOCIATES
Defender
And
AGRO INVEST OVERSEAS LIMITED
Pursuer
against
ROBERT TREMBATH t/a TREMBATH ASSOCIATES
Defender
Agro Invest Overseas Limited v Stewart Milne Group Limited
Pursuer: McColl QC, McKenzie; Brodies LLP
Defender: Johnston QC, Walker QC; Anderson Strathern LLP
2
Agro Invest Overseas Limited v Morgan Associates
Pursuer: McColl QC, McKenzie; Brodies LLP
Defender: Morton sol-adv, BTO
Agro Invest Overseas Limited v Robert Trembath t/a Trembath Associates
Pursuer: McColl QC, McKenzie; Brodies LLP
Defender: Marney; DWF LLP
18 December 2018
Introduction
[1] In 2007, the pursuer, Agro Invest Overseas Limited (“Agro”) entered into a series of
contracts for the design and construction of works at the Ben Alder Estate, Dalwhinnie,
Inverness-shire. For present purposes, four separate locations of the works are relevant: the
leisure centre, situated in the main lodge building at basement level; the breakfast room, also
situated in the main lodge building, at the level above the basement; the north tower
extension to the main lodge building; and a new private chapel and a beach turret,
constructed on the shore of the loch, away from and not physically linked to the main lodge
building.
[2] Stewart Milne Group “(SMG”) was appointed as the main contractor, with the
building contract providing for sectional completion of the works. Morgan Associates
(“Morgan”) was appointed as the civil and structural engineer for inter alia the leisure centre.
Robert Trembath (“Mr Trembath”), trading as Trembath Associates, was appointed as the
architect for the part of the works at the chapel and beach turret.
[3] In April 2015, Agro raised separate actions against SMG, Morgan and Mr Trembath.
In the case against SMG, the summons was served on 28 April 2015. The claims against
SMG concern losses allegedly sustained as a result of: (i) water ingress problems in the
3
leisure centre, breakfast room, north wing extension, the chapel and the beach turret; and (ii)
structural issues affecting the chapel and the beach turret. The action against SMG proceeds
upon the basis of alleged breaches of contract. In the case against Mr Trembath, the
summons was served on 29 April 2015. That claim concerns alleged defects in the works at
the chapel. It is based upon breach of contract and fault. In the case against Morgan, the
summons was served on 30 April 2015. That claim concerns losses allegedly sustained by
reason of water ingress problems caused by design defects in the leisure centre. It is based
upon breach of contract and fault. Agro also sued another firm of architects which had been
involved in the design of part of the works, but that action has been resolved. In due course,
in the action against SMG, third party notices were served by SMG on Morgan and
Trembath and they were convened as third parties in that action.
[4] SMG and Morgan take issue with whether, if loss has been sustained in relation to
the alleged defects in the leisure centre, the breakfast room and the north wing extension,
Agro has suffered loss. Another entity, Compania Financiera Waterville SA, (“CFW”) a
Panamanian registered company, is the owner of the land on which the leisure centre,
breakfast room and north wing extension are situated. Agro claims that it had entered into
an oral agreement with CFW that Agro would meet the costs of repair of defective work.
SMG and Morgan argue that the basis for liability under the oral agreement has not been
made out and further that any obligation on the part of Agro, owed to CFW, to meet the
costs of repair must have been extinguished by prescription. SMG, Morgan and
Mr Trembath also contend that any obligation they each may have had to make reparation
to Agro has been extinguished by prescription. All three cases called together before me for
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