Knapdale (nominees) Limited V. Robert Donald, Junior And Another
| Jurisdiction | Scotland |
| Judge | Lord Kingarth |
| Date | 25 May 2000 |
| Docket Number | 0129/06 |
| Court | Court of Session |
| Published date | 25 May 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| 0129/06/96
| OPINION OF LORD KINGARTH in the cause KNAPDALE (NOMINEES) LIMITED Pursuers; against ROBERT DONALD, JUNIOR and ANOTHER Defenders: ________________ |
Pursuers: Sir Crispin Agnew of Lochnaw, QC; Burness, WS
Defenders: Upton; Drummond Miller (For Hunter & Murray, Solicitors, Stranraer)
25 May 2000
[1]The pursuers are heritable proprietors of the farm and lands of Ballochmorrie and Drumgrier in the Parish of Colmonell and County of Ayr ("the farm"). In about April 1935 the farm was let by the pursuers' predecessors in title to Mr Robert Donald, Senior. He died on 4 January 1996. From about 1964 farming operations were carried on at the farm by a partnership known as Robert Donald & Son, whose partners from about 1987 onwards were Robert Donald, Senior and his son, Robert Donald, Junior, the first defender. From the beginning of 1993 farming operations were carried on at the farm by a partnership trading under the same name, the partners of which were the two former partners and in addition the first defender's son, Iain Donald, who is the second defender. In the present action the pursuers claim that it can be implied from certain proved facts and circumstances that at least from 1993 Robert Donald, Senior, renounced his interest in the original lease and that thereafter the pursuers on the one hand and the partnership of Robert Donald & Son on the other entered into a new lease of the farm. They further claim that this new lease came to an end on the death of Robert Donald, Senior on 4 January 1996. It is common ground that if Robert Donald, Senior did not renounce his lease before his death, his interest has been properly transferred to the first defender by procedures under section 16(2) of the Succession (Scotland) Act 1964 and section 12(1) of the Agricultural Holdings (Scotland) Act 1991.
[2]The principal conclusions of the summons are for declarator. These (as amended at the bar after evidence was led) are:
"1.For declarator that the lease between the pursuers and R. Donald & Son, a firm of which the partners were Robert Donald, Senior and the first defender or alternatively with the firm of Robert Donald & Son (constituted in 1993) of which Robert Donald, Senior and the defenders were partners, constituted by the actings of the pursuers and the said firm and its partners in and after 1990, of ALL and WHOLE the farm and lands of Ballochmorrie and Drumgrier in the Parish of Colmonell and County of Ayr all as occupied by the said firm came to an end on or about 4th January, 1996 following upon the death of Robert Donald, Senior.
2.For declarator that the first defender and/or the second defender, neither as individuals nor as the surviving partner of the former firm of R. Donald & Son (or alternatively Robert Donald & Son (constituted in 1993) have any continuing right to the possession or occupation of the said farm and lands of Ballochmorrie and Drumgrier in the Parish of Colmonell and County of Ayr and that the pursuers are entitled to vacant possession thereof."
There follows a conclusion which seeks to ordain the defenders as individuals and as surviving partners to remove.
[3]For the pursuers, Mark Wilson, who had been a director of the pursuers for more than 15 years, gave evidence. For the defenders, both defenders gave evidence, as did Mrs Helen Donald, wife of the first defender. A number of productions were lodged by both sides. Certain matters, including a number of these productions, were agreed in a Joint Minute of Admissions. In the event much of the time in the proof was taken up by submissions after evidence had been led. I shall record first however what I find proved.
[4]Robert Donald, Senior, father of the first defender, was originally the tenant of Ballochmorrie Farm until about 1990, in terms of a Minute of Agreement and Lease between John Henderson, Esquire of Ballochmorrie (of the first part) and Mary Phillips or Donald, James Donald and Thomas Donald (of the second part) and Mary Phillips or Donald, Gavin Donald and Robert Donald (of the third part) dated 9th, 14th, 16th and 19th all May, 1932 and subsequent Minutes dated (i) 3rd, 7th and 9th June, 1933, and (ii) 26th and 30th April, 1935 whereby the said Robert Donald, Senior, became the sole tenant. The terms of the said Lease were set out in (i) the said Minute of Agreement and Lease, (ii) the said Minutes, (iii) an Assignation by Mrs Hannah Dick or McGarva and David Dick McGarva in favour of the said Mary Phillips or Donald, James Donald and Thomas Donald, with the consent of the said John Henderson dated 26th March, 17th and 23rd both dates in April and 5th May all dates 1919, (iv) a Minute between the said John Henderson and the said Mary Phillips or Donald, James Donald and Thomas Donald dated 26th March, 17th and 23rd both dates in April and 5th May all dated 1919, (v) a Lease between the said John Henderson and Alexander Wilson McGarva dated 6th July, 1912 and (vi) a Minute of Agreement between Fergus William McKenna, as then landlord and Robert Donald, Senior as tenant dated 28th July and 15th August, both dated 1950. It was a term of the said Lease that the tenant should keep the farm stocked with sheep, cattle, horses and farm implements their own bona fide property.
[5]From about 1964 farming operations at the farm (as accepted in evidence by the first defender) were carried out by a partnership under the name of Robert Donald & Son, of which partnership Ronald Donald, Senior, his wife and the first defender were the original partners. The partnership and its farming operations were carried on after the death of Robert Donald, Senior's said wife in about 1984 by the remaining partners. The written contract of partnership, signed in March 1964, provided that the partners were to be partners "in the business of Farmers to be carried on at Ballochmorrie.... or elsewhere as may be agreed upon." Until the end of 1992, all rent notices (sent together with standard remittance forms) were addressed to Robert Donald, Senior and were in his name. A number of rent notices covering periods from March 1990 until October 1992 were produced. One of the standard remittance forms dated November 1990 was also produced. At all times until the end of 1992 rent was paid by the partnership of Robert Donald & Son by cheque drawn on the partnership account in a bank in Girvan. This had been the case since 1964.
[6]The pursuers became heritable proprietors of the farm by virtue of a disposition in their favour executed on 30 September and 7 and 8 October 1991 and recorded in the Division of the General Register of Sasines for the County of Ayr on 7 April 1992, and as such were the landlords of the holding. The pursuers are corporate trustees of a family trust established by Mark Wilson in 1985. The 1991 disposition provided for entry as of 8 June 1987 "notwithstanding the date or dates hereof".
[7]Until 1990 the pursuers, according to Mr Wilson, believed that Robert Donald, Senior was and remained the tenant of the farm. In the middle of that year a co-operative was formed to enable the joint purchase of certain equipment for production of silage. A number of acres of certain farms were committed. Rules of what became known as the Duisk Forage Group were drawn up in typed form by the organisers (whose identity was not made clear). Certain farms in which the Wilson family had an interest were committed and it was Mark Wilson's father, William Wilson (who was also a director of the pursuers), who was particularly involved. In relation to the farm William Wilson had personal dealings with the first defender, who was known to be involved in the operation of the farm.
[8]It was Mark Wilson's evidence that it became clear to him and his father from the documentation connected with the Duisk Forage Group that Robert Donald & Son were tenants. In the printed rules, 70 acres of the farm were committed by R Donald & Son as "member of the Group". The printed section headed "We, the undersigned agree to abide by the above the rules" included under columns headed "name" and "address" (there being a third column available for "signature") R Donald and Son, Ballochmorrie Farm, Robert Donald (Jnr), Barrhill and Robert Donald (Snr), Girvan"
This section was signed by Robert Donald, Senior and by the first defender on 1 June 1990. Information to enable the printed rules to be completed had been provided to the organisers on forms which left blank spaces for certain details to the filled in. In these documents under "Member's Name (ie. trading name of the farming business)" the first defender had written "R Donald and Son" and indicated that 70 acres were committed. On a separate page the first defender, asked to complete the name, address and full names of all the partners/directors of group members, wrote "R Donald and Son, Ballochmorrie Farm and Robert Donald, Junior and Robert Donald, Senior" respectively. On a further page he wrote "R Donald and Son" under a heading of "Member's Name" and opposite that indicated the holding number and certain details relative to the farm.
[9]The forms were discussed between Mark Wilson and his father when they saw them. No specific consideration however given to the terms of the lease at that stage. Mr Wilson explained that they did not think it important then, since it seemed that Robert Donald, Senior was likely to die soon. The significance of this was, however, not explained. They were however content that, as they saw it, the partnership should continue to occupy. Mark Wilson was, he said, unaware of the form in which rent notices were sent until the end of 1992. These, however, continued to be sent as they always had been by Ernst & Young Financial Management Limited, who acted as agents for the pursuers and their predecessors for the purpose of collecting the rent due in respect of the farm and for other purposes connected with it.
[10]In...
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