Patricia Ann Simpson Or Morris V. James Gavin Morris
| Jurisdiction | Scotland |
| Judge | Sheriff John K Mundy |
| Court | Sheriff Court |
| Docket Number | A23/11 |
| Date | 11 January 2012 |
| Published date | 06 March 2012 |
| SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE Case Number: A23/11 | |
| Judgement by JOHN K MUNDY, Esq., Advocate Sheriff of Tayside Central and Fife in the cause MRS PATRICIA ANN SIMPSON or MORRIS Pursuer against JAMES GAVIN MORRIS Defender ________________ |
Act: Miss Wilson
Alt: Forsyth, Advocate.
DUNDEE, 11 January 2012
The Sheriff, having resumed consideration of the cause, grants decree de plano in terms of the first crave for the pursuer and sustains the fourth plea-in-law for the pursuer in the principal action to that extent; and accordingly grants decree ordaining the defender to implement clause 3 of the Minute of Agreement between the parties dated 25 and 31 August 2010 and registered in the Books of Council and Session on 2 September 2010, and that by: (a) the defender executing and delivering to the pursuer a declaration of the defender's present solvency within a period of 28 days from this date; and (b) the defender paying to Lloyds TSB plc (formerly Cheltenham & Gloucester) the full sum required to redeem the secured loan owed by the parties in terms of mortgage account number 50000084209484 (including without prejudice to the foregoing generality any early redemption charges or penalties due on the date of settlement) and that within a period of 28 days from this date; repels the first, second and third pleas-in-law for the defender in the principal action; appoints the cause to hearing on a date to be afterwards fixed, such date being after the expiry of 28 days from this date; finds the expenses relative to the diet of debate set down for 9 September 2011 to be expenses in the cause; finds the pursuer liable to the defender in the expenses relative to the Minute of Amendment and Answers Numbers 15 and 16 of process and allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and report; finds the defender liable to the pursuer in the expenses of the debate on 26 October 2011 and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report.
NOTE:
Background
- This is an action in which the pursuer seeks a decree ordaining the defender to implement the terms of a clause in a Minute of Agreement between the parties dated 25 and 31 August 2010 ("the agreement"). She seeks damages in the alternative. The agreement was entered into in order to regulate financial and other matters in contemplation of divorce. The parties were subsequently divorced in this court on 19 October 2010.
- The terms of the agreement are incorporated in the pleadings. In terms of Clause 3, the parties agreed that the defender would transfer the matrimonial home at 6 Jedburgh Road, Dundee to the pursuer and in furtherance thereof the defender agreed inter alia to "(a)...execute and deliver a disposition conveying his whole right title and interest in the house and a declaration of solvency" to the pursuer on the "date of settlement" and further that he would "(b)...pay the full sum required to redeem the secured loan in favour of Lloyds TSB plc (formerly Cheltenham & Gloucester ) including without prejudice to the foregoing generality any early redemption charges or penalties due on the date of settlement." In terms of the clause, the "date of settlement" was defined as "(i)...7thOctober 2010 or such other date as the parties may mutually agree." For her part the pursuer agreed inter alia to "(c)...register a discharge of the security granted by the parties in favour of Cheltenham & Gloucester within 28 days of the date of settlement; and will exhibit within 6 months of the date of settlement the charge certificate confirming registration thereof."
- Settlement did not occur on 7 October 2010. Correspondence passed between the parties' respective solicitors, some of which is incorporated in the pleadings. By letter of 20 October 2010, the defender's solicitors sent to the pursuer's solicitors a Disposition of the house executed by the defender but to be held as undelivered pending settlement. However, it appears that inter alia the declaration of solvency and repayment by the defender of the mortgage remained outstanding. On 25 October 2010, the defender's solicitors wrote again proposing 2 November 2010 as the new date of settlement. That appears to have been accepted by letter from the pursuer's solicitors of 27 October 2010. The pleadings of the pursuer are a little ambiguous on this point, referring to the new settlement date in terms of a proposal and the averments on behalf of the defender in Answer 2 suggest that no alternative date was agreed although the consequence of that stance is not articulated. I find that position difficult to reconcile with the terms of the letter which is incorporated in the pleadings. In any event, settlement did not take place on 2 November 2010 and has not subsequently taken place.
- In this action, the pursuer seeks the implement of Clause 3 of the agreement and in terms of her first crave (a) an order ordaining the defender execute and deliver a declaration of present solvency within a period of 28 days and (b) an order requiring the defender to pay the full sum required to redeem the secured loan. In the alternative she seeks payment of £134,142.91 representing, on her averments, the amount outstanding to...
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