David Mcgraddie V. Rodger John Mcgraddie+lorna Esther Green
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2009] CSOH 142 |
| Date | 03 November 2009 |
| Docket Number | A566/07 |
| Court | Court of Session |
| Published date | 03 November 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 142 | |
| A566/07 | OPINION OF LORD BRODIE in the cause DAVID McGRADDIE Pursuer; against RODGER JOHN McGRADDIE and LORNA ESTHER GREEN Defenders: ________________ |
Pursuer: Jonathan Brown, McClure Naismith
Defenders: Buchanan; HBM Sayers
3 November 2009
Introduction
[1] Not every homecoming is free from complications.
[2] The pursuer and first defender are, respectively, father and son. As at the date of proof the pursuer was 73 years old and the first defender 53 years old. The second defender is the long term partner of the first defender. They have been living together for some 30 years. They have a son, Richard McGraddie.
[3] The action concerns disputes relating to two payments of money by the pursuer to the first defender for the purpose, so the pursuer avers, of purchasing two specified heritable properties, the title to be taken in the pursuer's name. Each of the properties, a flat 0/3 23 St Helen's Gardens, Glasgow, and a house at 6 Lochrig Court (formerly Plot 8, Manor Gardens), Stewarton, Ayrshire, had been newly built. The first payment was made by a transfer by the pursuer of £192,703.88 to the first defender's account with Abbey National plc on 8 December 2005. The second payment was made by the delivery by the pursuer to the first defender on or about 19 February 2007 of a cheque payable to the first defender in the sum of £285,000. The defenders do not dispute that these payments were made. They dispute their purpose.
[4] The pursuer avers that the purpose of each payment was to buy the relevant property. He avers in relation to both properties that at no time did he give the first defender any instruction to the effect that title was to be taken other than in the name of the pursuer. Among the remedies for which he concludes is decree ordaining the first defender to deliver a disposition in favour of the pursuer of the flat at 23 St Helen's Gardens and decree ordaining the first and second defenders to deliver a disposition in favour of the pursuer of the house at 6 Lochrig Court. The first defender's defence to the claim in respect of 23 St Helen's Gardens depends on the averment that the pursuer instructed that title be taken in the name of the first defender with the intention that the defenders' family would have an interest therein. As far as the payment of £285,000 which was used in part to purchase 6 Lochrig Court is concerned, the defenders aver that this was a gift for both of them to use as they pleased.
[5] I heard proof on 28 April to 1 May and on 20 to 22 and 25 May. Mr Jonathan Brown, Advocate, appeared for the pursuer. Mr Buchanan, Advocate, appeared for the defenders. The pursuer gave evidence as did both defenders, Mr Bruce Wilson, an accountant, Sheriff Andrew Mackie who when in solicitor's practice had acted for the defenders, and Richard McGraddie.
Uncontroversial facts
The first transaction
[6] The first defender is one of two sons of the pursuer and his late wife, Joyce McGraddie. The pursuer has been estranged from his other son, Daniel, for a long time. The pursuer and his wife were originally from Scotland but they lived in Albuquerque, New Mexico, for a number of years during which period the pursuer acquired a number of properties. Joyce McGraddie underwent heart surgery in 1990 and for the latter part of her life she was an invalid. In October 2005 the defenders and Richard visited the pursuer and his wife in Albuquerque. It was apparent that Joyce McGraddie was in a terminal stage of her illness. It was determined that she and the pursuer would move back to Glasgow. They asked the first defender to find accommodation which would be suitable, having regard to the fact that Mrs Joyce McGraddie was a wheelchair user. The first defender advised the pursuer that he had identified a newly constructed flatted dwelling house, flat 0/3 23 St Helen's Gardens, Glasgow which he considered to be suitable to accommodate both the pursuer and his wife. The pursuer and Mrs Joyce McGraddie returned to Scotland in November 2005. They viewed the flat and agreed that it would indeed be suitable. As I have already indicated, the pursuer arranged for the transfer of the sum of £192,703.88 to the first defender's account with Abbey National plc on 8 December 2005. These funds were sufficient to meet the price of 23 St Helen's Gardens together with the legal fees and outlays required to complete the purchase. The purchase was accordingly entirely funded by the pursuer. It was, however, the first defender who instructed solicitors, Messrs Mackie Thomson & Co, to complete the purchase of the property. Mr Andrew Mackie of that firm, as he then was, took responsibility for the transaction in the absence from business of his partner, Carole Thomson, with whom the defenders had previously dealt.
[7] Messrs Mackie Thomson accepted a disposition in favour of the first defender in implement of the contract for the purchase and sale of the flat at 23 St Helen's Gardens. The first defender instructed submission of an application for registration in the Land Register of Scotland of his interest as proprietor of the subjects.
[8] On 1 January 2006 the pursuer and his wife moved into the flat at 23 St Helen's Gardens. Six days later the pursuer's wife died. Since then the pursuer has continued to live in the flat.
The second transaction
[9] On or about 19 February 2007 the pursuer delivered to the first defender a cheque for £285,000. That cheque was presented for payment on 20 February 2007 and the sum of £285,000 was credited to the first defender's account with Abbey National plc.
[10] In February 2007 George Wimpey West Scotland Limited were marketing a housing development known as Manor Gardens, Stewarton, Ayrshire. They advertised the development in at least two newspapers, the Eastwood Extra and the GSPC (Glasgow Solicitors' Property Centre) newspaper. Both of these newspapers are published weekly. The edition of the Eastwood Extra for 1 February 2007 carried an advertisement for an "Open Day" at the development. The edition for 8 February 2007 carried an advertisement for the house built on plot 8 (described as "4 bed Willow" under the heading "Don't Lose the Plot") at a price of £310,000. Neither the edition of the Eastwood Extra of 15 nor that of 22 February 2007 carried advertisements for the development. However, the edition of the GSPC newspaper of 20 February 2007 did carry an advertisement for "4 & 5 bedroom homes" at the development "from £299,995"
[11] Number 7/6 of process is a George Wimpey Purchasers Incentive Form relating to plot 8 Manor Gardens. It bears the date "24/2/08" but that may be taken to be intended to be a reference to 24 February 2007. It is signed by the first and second defenders. The price is stated as £299,995 subject to a discount of £9995 and various items being included in the purchase, one which is stated to be stamp duty paid at 3 per cent. Number 7/6 of process is a George Wimpey Reservation Form relating to plot 8, dated 24 February 2007 and signed by the first and second defenders. Again the price is stated as £299,995 subject to a discount of £9995 producing a Contract Selling Price of £290,000. A fixed date of entry is stated as 30 March 2007.
[12] Between 3 and 12 April 2007 the first defender transferred the sum of £199,880 from his account with the Abbey National plc to the client account of Messrs Mackie Thomson, solicitors. On 13 April 2007 Messrs Mackie Thomson received on behalf of the defenders a mortgage advance of £90,000 from Halifax plc, subject to deduction of a fee of £30. On 12 April 2007 Messrs Mackie Thomson sent to George Wimpey West Scotland Limited a cheque dated 13 April in the sum of £280,750 in settlement of the purchase by the defenders from George Wimpey of the house at 6 Lochrig Court, Stewarton, Ayrshire, (otherwise Plot 8, Manor Gardens, Stewarton). An application was thereafter presented by Messrs Mackie Thomson for registration in the Land Register of Scotland of the defenders' interest as joint pro indiviso proprietors of the subjects at 6 Lochrig Court.
Evidence on the disputed issues of fact
The first transaction
[13] Parties were agreed that there had been discussion of a proposal that title to the flat at 23 St Helen's Gardens should be taken in the name of the defenders' son, Richard, who was then 17 years of age. This was despite the fact that the flat was intended for the occupation of the pursuer and his wife, Mrs Joyce McGraddie. The flat had been reserved by the first defender in Richard's name (in the sense of paying a small deposit in return for the right to complete missives). However, when taking instructions Andrew Mackie pointed to the risks associated with title to a property intended for the occupation of his grandparents being in the name of a 17 year old. According to the pursuer, he and his late wife discussed the matter and agreed that it was too much responsibility to give to their grandson and, accordingly, they decided that the title should be in "our names". At all events, it was agreed by parties that the proposal to take title to the flat in Richard's name was departed from. Parties were at issue as to what, if anything, was said as to what alternative arrangement should be adopted in relation to the title to the flat. I did not understand that the pursuer claimed that he had ever specifically instructed the first defender that the title should be taken in the pursuer's name. However, he was quite clear that he had never given an instruction for the title to be taken in the first defender's name. When it was put to him in cross-examination that he did not want title in his name because he did not want "the authorities" to know that he had any interest in a property, his response was robust: "This is completely out of order". While at one point he stated "I wanted my house in my name", in a number of other answers, to which Mr...
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