John Gray Against Roderick John Macneil (as Executor-nominate To The Estate Of The Late Donald Macneil)
| Jurisdiction | Scotland |
| Judge | Sheriff C Dickson |
| Neutral Citation | [2016] SC LOC 8 |
| Court | Sheriff Court |
| Date | 25 January 2016 |
| Docket Number | A5/13 |
| Published date | 02 February 2016 |
SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LOCHMADDY
[2016] SC LOC 8
A5/13
JUDGMENT OF SHERIFF C DICKSON
In the cause
JOHN GRAY
Pursuer;
Against
RODERICK JOHN MACNEIL
(as Executor-nominate to the estate of the late Donald MacNeil)
Defender:
Lochmaddy, January 2016
The sheriff, having resumed consideration of the proof before answer, finds the following facts admitted or proved:
FINDS IN FACT
1. The pursuer is John Gray. The defender is Roderick John MacNeil acting in his capacity as executor-nominate to the estate of the late Donald MacNeil (hereinafter referred to as “the deceased”). The deceased was originally the defender in this action but died on 15 April 2015. The current defender is the deceased’s son.
2. At the time material to this action the deceased was the owner of Burnside Petrol Filling Station, Daliburgh, South Uist (hereinafter referred to as “the petrol station”). The petrol station included three pumps, a forecourt shop and land. In 1992 the deceased’s daughter, Michelle Gray (hereinafter referred to as “Mrs Gray”), returned to South Uist after having spent a period of time living in London. Mrs Gray returned to South Uist at that time in order to help look after her mother, Flora MacNeil, who was in failing health, and to help run the petrol station business with the deceased. Flora MacNeil subsequently died in 1996. After her death Mrs Gray and the deceased continued to run the petrol station business until the forecourt shop was converted into a chip shop.
3. The pursuer, John Gray, married Mrs Gray in October 1998. After their marriage the pursuer and Mrs Gray resided in The Chalet [address] (hereinafter referred to as “The Chalet”). The Chalet was owned by the deceased and located in the grounds of the deceased’s home at Burnside Cottage [address]. Burnside Cottage was owned by the deceased and located on land adjoining the petrol station.
4. In 1998 the pursuer worked in the salmon fish farming industry. The pursuer continued to work in that industry until the summer of 2005. The pursuer and Mrs Gray had five children together. The children were born between March 2002 and December 2008. Mrs Gray was the main carer for the children.
5. By Autumn 2004 the petrol station business owed in the region of £70,000 to the Bank of Scotland. At that time Mrs Gray recognised that the petrol station business would not be able trade out its financial difficulties. The deceased was fully aware of the extent of the financial difficulties faced by the petrol station business. The extent of the financial difficulties faced by the petrol station business resulted in discussions taking place between the deceased, Mrs Gray and the pursuer in relation to creating a new business that could be operated from the petrol station. At that time the deceased would normally have an evening meal with the pursuer and Mrs Gray each day. After much discussion, the said three persons struck upon the idea of converting the petrol station’s forecourt shop into a chip shop. The said three persons then had numerous discussions in relation to converting the forecourt shop into a chip shop business. The discussions included discussions about the pursuer: converting the forecourt shop into a chip shop; leasing the chip shop from the deceased; and attending training to learn how to fry fish.
6. In around October 2004 the pursuer attended a fish fryer course in Leeds. Whilst the pursuer was in Leeds attending the fish fryer course, he visited Martyn Edwards Limited, who were a fish and chip shop range manufacturer, in order to consider what equipment would be required for the conversion of the forecourt shop.
7. The pursuer obtained funding for the conversion of the forecourt shop into a chip shop. The pursuer obtained a £11,000 loan from the Royal Bank of Scotland. The pursuer also obtained grants from Western Isles Enterprise and Western Isles Council. In total the pursuer obtained approximately £50,000 in funding (hereinafter referred to as “the £50,000 funding”).
8. On an occasion in early 2005 a discussion took place between the pursuer, Mrs Gray and the deceased at the Chalet. This discussion concerned the lease of the forecourt shop to the pursuer in order that he could operate it as a chip shop. This discussion was the culmination of numerous previous discussions. At the conclusion of the discussion, the purser verbally agreed a lease in respect of what was then the forecourt shop. The following were the verbally agreed terms of the lease:
(1) That the parties were the pursuer and the deceased.
(2) That the property to be leased would be the forecourt shop.
(3) That the forecourt shop would be converted to a chip shop.
(4) That the rent for the forecourt shop would be that the pursuer would be responsible for the staffing and running costs of the petrol station business, save for the purchase of new fuel.
(5) That the duration of the lease would be 15 years from the date when the chip shop opened for business.
The pursuer and the deceased shook hands on the above agreement (hereinafter referred to as “the verbal lease”).
9. Mrs Gray asked the deceased whether the verbal lease should be put into writing. The deceased told the pursuer and Mrs Gray that this was an agreement made by the family and that, as such, he did not see the need for, and did not want to pay fees to lawyers for, putting the agreement into writing. The pursuer did not obtain legal advice and the verbal lease was not reduced to writing.
10. The £50,000 funding was used to pay for the conversion of the forecourt shop into a chip shop. The conversion included re-routing utility services, renovating the building, purchasing and installing equipment, and decoration of the shop building.
11. By March 2005 the petrol station business owed the Bank of Scotland over £80,000. The deceased had known for a number of years that a substantial amount of money was owed to the Bank of Scotland by the petrol station business and that this debt had been increasing over time.
12. The pursuer purchased the following equipment for use in the chip shop:
(1) Frank Ford Fish Frying Range with griddle;
(2) Fish Fridge;
(3) Stainless Steel Fridge;
(4) Bold Chipping Machine;
(5) 28lb Potato Rumbler;
(6) Wet Well Baine Marie;
(7) Eclipse Counter;
(8) Serve Over Refrigerated Counter;
(9) Fish and Chip Filtration Machine ;
(10) Stainless Steel Table with cut away corner;
(11) Stainless Steel shelving;
(12) Water Tanks and Boiler Unit
(13) Signage
(14) Uniforms and safety shoes
(15) Utensils (including two batter trays)
(16) Gas tank
(17) Three picnic benches
(18) White Marquee
(19) Chip Barrel and Basket
(20) Four 80ltr Black Bins
(21) Industrial Microwave
(22) Radio
(23) Kettle
(24) New Motor for the fish frying range
13. The chip shop opened for business on 1 July 2005. From 1 July 2005: (1) the chip shop business and the petrol station business was managed by the pursuer; (2) the pursuer paid for the staffing and running costs of the chip shop; (3) the pursuer retained the profits in the chip shop business; (4) the pursuer paid for the staffing and running costs of the petrol station business, save for the purchase of new fuel, which remained the responsibility of the deceased; and (5) the deceased retained any profits made by the petrol station business.
14. The pursuer opened new bank accounts with the Royal Bank of Scotland for the chip shop business and the petrol station business. The monies owed by the petrol station business to the Bank of Scotland remained outstanding.
15. The pursuer kept a record of takings and expenditure for the chip shop business in a cash book. The purser recorded daily takings and expenditure in his cash book, with each month having a single page in his cash book. The chip shop business was well received in the local community. The chip shop was profitable and traded throughout the year between 2005 and the autumn of 2010. Trade was at its peak in the summer months and at its lowest in the winter. In the winter of 2010 the pursuer decided that it was not worth opening the chip shop during the winter months. The pursuer closed the chip shop for the winter of 2010 with the intention of re-opening the chip shop in the spring of 2011. At that time Mrs Gray remained on South Uist and managed the petrol station business in the pursuer’s absence. The pursuer found work for the winter of 2010 in a chip shop in Blackpool. In early 2011 the pursuer and Mrs Gray separated, however that did not affect the pursuer’s plan to re-open the chip shop in the spring of 2011. In May 2011 the pursuer returned to South Uist, opened the chip shop, and resumed management of both the chip shop business and the petrol station business. In the winter of 2011 the pursuer again closed the chip shop for the winter with the intention of re-opening the chip shop in the spring of 2012. The pursuer found work for the winter of 2011 in a chip shop in Blackpool. In February 2012 the pursuer returned to South Uist, opened the chip shop, and resumed management of both the chip shop business and the petrol station business. The pursuer managed the chip shop business and the petrol station business until 20 October 2012.
16. The relationship between the deceased and the pursuer had been deteriorating for several years. By the end of 2008 the relationship was hostile and did not subsequently improve.
17. In or around 2012 the pursuer reported the deceased to the police for a number of sexual offences allegedly committed [against named persons]. In October 2012 Mrs Gray took her five children to visit her brother, Donald John MacNeil, in London. Mrs Gray, whilst in London, spoke to the deceased on the telephone. The deceased alleged that a female, who had previously worked in the chip shop, was staying at the Chalet (Mrs Gray’s home) with the pursuer. Mrs Gray was furious about this and immediately telephoned the pursuer. The pursuer told...
To continue reading
Request your trial