Mrs Barbara Pottinger Finnie V. Colin Stuart Finnie
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 03 December 2003 |
| Docket Number | A285/02 |
| Published date | 16 December 2003 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT STONEHAVEN
A285/02
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC | ||
| in the cause | ||
| MRS BARBARA POTTINGER FINNIE | ||
| Pursuer and Appellant | ||
| against | ||
| COLIN STUART FINNIE | ||
| Defender and Respondent |
Act: Mr Barclay, advocate, instructed by Henderson Boyd Jackson WS, Edinburgh
Alt: Mr A M Clark, advocate, instructed by Burnside Kemp Fraser, Aberdeen
Stonehaven: December 2003
The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 17th July 2003; finds the pursuer and appellant liable to the defender and respondent in the expenses of the appeal and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.
Note
- In this case the parties are husband and wife. The action is one of count, reckoning and payment. The pursuer craves the court to ordain the defender to produce a full account of his intromissions with the sums due by him to her under and in terms of clause 5.3 of a minute of agreement between them and to pay to the pursuer the sum of £12,858.26, or such other sum as may appear to be the true balance due to her; and, in the event of the defender failing to enter appearance or to produce an account, to ordain him to pay to the pursuer the sum of £12,858.26.
- According to article 2 of the condescendence, the parties have lived separately since 1st May 1997. They made formal arrangements in respect of their separation in terms of a minute of agreement between them dated 21st and 25th November 1997. At the time the agreement was signed, the pursuer was residing at an address in Banchory and the defender at an address in Aberdeen.
- Clause 5 of the agreement provided that the pursuer should enter into a binding contract for the purchase of a new dwellinghouse which was then in the course of construction at Strachan, by Banchory. Clause 5.1 provided that the defender should pay the sum of £70,000 direct to the sellers' agents within seven days of missives being concluded. Clause 5.2 provided that the pursuer would provide the balance of the purchase price of the property. For present purposes, clause 5.3 is the important one, and it provided:
- The (defender) shall contribute the sum of Thirty Five Thousand Pounds (£35,000) Sterling towards kitchen units, bathroom fittings and fixtures, general decoration, floor coverings and curtains and other furnishings, all to be chosen by the (pursuer). The cost of the kitchen units and bathroom fittings and fixtures will be paid direct by the (defender) to the developers of the subjects. The balance will be paid by the (defender) to the (pursuer) as soon as the costs of the kitchen units and bathroom fittings and fixtures are intimated to the (defender).
- In article 5 of the condescendence the pursuer avers that during the construction of the dwellinghouse she selected, with the assistance of the developers thereof, various items comprising fixtures and fittings for installation in the dwellinghouse as provided for in terms of clause 5.3, which items were duly installed by the developers. She avers that the whole cost of these items was paid for direct to the developers by the defender. She then avers:
- In article 6 the pursuer avers that the defender has stated to her that no balance is due to her in terms of clause 5.3. She then refers to a letter written by the defender to her dated 9th March 2002 in which, in short, he stated that he had paid over the whole amount of the sum of £35,000 due by him in terms of clause 5.3 directly to the developers. But the pursuer evidently does not accept this, for in article 7 she states that she reasonably believes that the whole sums expended by the defender in terms of clause 5.3 fall short of the sum of £35,000 to be contributed by the defender under the terms of this provision. She then explains that she has employed some surveyors to value the cost of the various items paid for by the defender and that the schedule prepared by them brings out a valuation of items paid for by the defender in the sum of £22,141.74 with the result, according to the pursuer, that there is a shortfall of £12,858.26 still to be contributed by the defender in terms of clause 5.3. At the end of article 7 some additional averments have been introduced by the pursuer by amendment in the following terms:
- For present purposes it is unnecessary to rehearse the defender's answers in full. In a nutshell, his position is that he has paid out more than £35,000 in pursuance of clause 5.3 so that the obligation in terms of this provision has been exhausted. And in answer 7 he denies in any event that there is any obligation on his part to account to the pursuer. This last averment is supported by his first plea-in-law which reads: "1. The pursuer's action being incompetent, should be dismissed".
- On 5th June 2003 parties were heard by the sheriff in debate on this plea, and by interlocutor dated 17th July 2003 he sustained the plea and dismissed the cause. It is this interlocutor which is the subject of the present appeal. The sheriff explained his decision in a careful note which he appended to the interlocutor. It is unnecessary that I should set this out in full here. In short, the sheriff's conclusion was that the pursuer's averments did not appear to instruct a relationship between the parties which created a legal duty on the part of the defender to account to the pursuer with the result that the action as laid was incompetent.
- Opening the appeal, counsel for the pursuer moved me to recall the interlocutor of the sheriff dated 17th July 2003 and to allow parties a proof before answer of their respective averments. He submitted that the pursuer had made sufficient averments in her pleadings to the effect that a relationship existed between the parties which gave rise to an obligation to account on the part of the defender. These averments were to be found in articles 4, 5 and 7 of the condescendence where reference was made to clause 5.3 and the subsequent verbal agreement between the parties. From the moment the agreement was signed, said counsel, the sum of £35,000, or at least the balance thereof not paid by the defender to the developers, belonged in terms of clause 5.3 to the pursuer. Counsel submitted that the relationship between the parties was established by the agreement and the defender's obligation to account derived from that relationship and the fact that the balance of the £35,000 due to be contributed by the defender, after he had settled with the developers, was to be paid to the pursuer. She therefore had an interest in funds belonging to her with which the defender had been intromitting. The verbal agreement between the parties merely...
It was a matter of further verbal agreement between the pursuer and the defender that payments under the contribution due by the defender in terms of (clause 5.3) were not merely to be restricted to the cost of the kitchen units and bathroom fittings and fixtures but were to include further payments to be paid directly by the defender to the developers from the said balance due out of the said sum of £35,000 for other household fixtures, fittings and furnishings installed in the dwellinghouse by the developers and chosen by the pursuer after the cost of the kitchen units and bathroom fittings and fixtures had been met.
The defender was obliged in terms of (clause 5.3) of the separation agreement, varied as aforesaid to intromit with the said sum of £35,000 and, after paying the developers, to pay the balance thereof to the pursuer. Having intromitted with the said sum and being obliged to transfer the balance thereof to the pursuer, the defender is bound to account to the pursuer in respect of those intromissions. It was an implied term of (clause 5.3) of the separation agreement that he would do so.
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