Graham Gibson V. Melanis Robb
| Jurisdiction | Scotland |
| Judge | Sheriff Principal I.D. Macphail, Q.C. |
| Court | Sheriff Court |
| Date | 26 April 2004 |
| Docket Number | A323/03 |
| Published date | 29 April 2004 |
SHERIFFDOM OF LOTHIAN AND BORDERS
A323/03
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
GRAHAM GIBSON
Pursuer and Appellant
against
MELANIE ROBB
Defender and Respondent
_________________________
Act: J A Brown, Advocate; Miller Beckett & Jackson, Glasgow
Alt: Kermack; Turcan Connell
EDINBURGH, 26 April 2004
The Sheriff Principal, having resumed consideration of the cause, opens up the closed record and allows the same to be amended (1) on page 17, line 16, by the deletion of the word 'occurrence' and the substitution therefor of the word 'concurrence', (2) on page 22, line 5, by the insertion of the word 'joint' before the word 'venture', and (3) on page 26, line 1, by the insertion after the words 'Council Tax' of the words '(incurring a shortfall to be met by the defender of £25), to Time Retail'; of new closes the record; allows the appeal; recalls the interlocutor of 9 December 2003 complained of; sustains the first and third pleas-in-law for the pursuer and appellant in the principal action; repels the second plea-in-law for the defender and respondent in the principal action; repels of consent the fifth, sixth and seventh pleas-in-law for the pursuer and appellant in the principal action; finds and declares that the pursuer is entitled to insist in an action of division and sale of the subjects described in the first crave of the initial writ; dismisses craves 1, 2, 3, 4 and 5(c) of the counterclaim and pro tanto sustains the first plea-in-law for the pursuer in the counterclaim; certifies the debate and the appeal as suitable for the employment of junior counsel; quoad ultra continues the cause until 19 October 2004 at 10.30 a.m. within the Appeal Court, Court No 9, Sheriff Court House, 27 Chambers Street, Edinburgh.
NOTE
Introduction
[1]This is a dispute between a man and a woman who formerly cohabited in a flat of which they were registered as the proprietors. Their relationship having come to an end, the man, who is the pursuer, has brought an action of division and sale of the flat. The defender resists this action on the ground that she and the pursuer were and are in partnership and the flat is partnership property: thus, she maintains, the pursuer is not entitled to the remedy of division and sale. She counterclaims for a declarator that they are in partnership and, amongst other things, for decree ordaining the pursuer to fulfil what she avers to be his obligations to the partnership. The pursuer challenges the relevancy of the defender's averments both in the principal action and in the counterclaim. The Sheriff has allowed a proof before answer, and the pursuer has appealed.
The pleadings
[2]The defender's averments are somewhat diffuse and repetitive but they may, I think, be summarised as follows. The parties formed a sexual relationship in August 1998. They began cohabiting in a property in Kelso which belonged to the defender. She sold that property in 1999 and went to live with the pursuer in his flat in Edinburgh. She contributed capital and effort in renovating that flat. It was sold when it was marketable. The parties then bought a flat at 27A East London Street on 14 December 1999 for £93,000. They did so 'for the benefit of the joint venture they were then involved in.' They expended effort and capital on that flat, as well as the skill, expertise and contacts of the defender, in the improvement of it. They spent about £17,000 on the renovation of that flat. They sold it for £147,177 on 10 September 2001, bringing that joint venture to an end.
[3]The defender continues (on page 22 of the record):
'The pursuer and the defender agreed that they would form a new joint venture in respect of 5/1 Bellevue Place, Edinburgh and would contribute the capital profits made by each of them from the joint venture in respect of 27A East London Street aforesaid into said new joint venture. The business of the pursuer and the defender involved entering into single joint ventures for the renovation of dilapidated properties and for the resale thereof with a view to profit.'
The most elaborate statement of the defender's position appears in the first paragraph of the statement of facts in the counterclaim. She there avers:
'The pursuer and the defender were and are carrying on business together, in common with a view to profit, and were and are in partnership. The partnership between them was and is a single adventure or undertaking, and ought not to be dissolved until the termination of the undertaking in terms of section 32(b) of the Partnership Act 1890. The single adventure or undertaking was the purchase of a property, namely 5/1 Bellevue Place, Edinburgh, as a property which was not readily marketable in the market place of residential property owing to its state of repair with a view to remedying the disrepair of the property and returning the property to the market for sale with a view to profit based upon the expense of the property and the expense of remedying the defects, whilst taking advantage of the main residence exemption for the purposes of capital gains tax by virtue of their residing in the said property. In doing so, the pursuer and the defender were relying on the contribution of capital by the pursuer and the defender, the efforts of the pursuer and the defender and the contacts acquired by the defender in the provision of goods and services required by the said partnership at a trade rate in her employment as a business development manager of a property development firm. The pursuer and the defender purchased the property at 5/1 Bellevue Place, Edinburgh, specifically with this intention in mind. The property was purchased on 7 September 2001.When the pursuer and the defender occupied the said property, owing to the state of the property they required to cook on a camping gas stove and were unable to have showers or baths, but were prepared to tolerate this for the purpose of the joint adventure. The pursuer and the defender operated a separate account, in the name of the defender, owing to the pursuer's credit rating, with the Royal Bank of Scotland plc, in order to meet the expenses of the joint adventure and other common expenses between them. The pursuer and the defender obtained a building warrant on 7 November 2001, numbered 01/06390/ALT, for the renovation of the said property. The pursuer and the defender embarked upon the renovation of the said property in terms of said building warrant and have nearly but not yet completed the works in terms of said building warrant. No completion certificate has yet been obtained in terms of said building warrant, nor have the works required thereunder been completed. During the course of the summer of 2002, the pursuer and the defender agreed that the joint venture between them would benefit if the said property at 5/1 Bellevue, Edinburgh, had the benefit of parking at the rear of the said property, taking access thereto by way of a lane leading to the rear of the said property. [ . . . ] It is the contention of the defender that the completion of these works would maximise and increase the joint profit to the partnership between the pursuer and the defender if these works were completed. It was contemplated as part of the joint venture between the pursuer and the defender that these works would be completed, with a view to profit for the partnership between them. Thereafter, for reasons of his own, the pursuer, and for reasons not relating to the action between the parties, removed himself from the property and sought to terminate the partnership between the parties hereto, which he was not entitled to do in terms of said section 32(b) of the 1890 Act. Said partnership continues in existence until completion of said joint venture and the pursuer is not entitled to seek the premature dissolution of said partnership. The defender is entitled to insists on the continued involvement of the pursuer, by way of his contribution of effort and capital until the completion of said joint venture.'
[4]Elsewhere the defender avers that the flat at 5/1 Bellevue Place constitutes partnership property, acquired for the purposes and in the course of the partnership business, and that she and the pursuer hold title to the flat not as pro indiviso proprietors but as trustees; and as such a trustee the pursuer is not entitled to insist in an action of division and sale (answers 3 and 4 in the principal action).
[5]The defender also asserts the existence of the partnership elsewhere in her pleadings, but she does not anywhere give any notice of how it came into existence. The pursuer, for his part, avers that he and the defender never discussed the formation of a business venture in connection with the flat at 5/1 Bellevue Place, and that he at no stage consented to such a business venture (page 4, lines 17 to 21; page 20, line 23 to page 21, line 1). At page 24, lines 8 to 15, he avers:
'There was no discussion between the parties anent termination of one joint venture and the reinvestment of profits in a new joint venture. The pursuer did not agree to any such arrangement. The only relevant discussions between the parties were of selling one jointly owned home and buying another larger and more desirable jointly owned home. There was no business element to the transaction.'
The defender's response to each of those three passages in the pursuer's pleadings is a general denial. Thus her position must be that discussions about the formation of a business venture did indeed take place between the parties and that the pursuer did consent to such a business venture. She does not specify, however, when, where or in what terms such discussions took place or such consent was given.
[6]In the principal action the pursuer pleads, inter alia:
'1. The defender's averments being irrelevant, the defences should be repelled and decree granted as craved.
3. The pursuer and the defender being joint proprietors pro...
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