Scotia Homes (south) Limited V. Mr James Maurice Mclean+mrs. Linda Isabella Mclean
| Jurisdiction | Scotland |
| Judge | Sheriff A. Grant McCulloch |
| Court | Sheriff Court |
| Date | 11 January 2012 |
| Docket Number | A216/10 |
| Published date | 17 January 2012 |
A216/10
SHERIFFDOM OF TAYSIDE CENTRAL & FIFE AT KIRKCALDY
JUDGMENT OF
SHERIFF AG MCCULLOCH
In the cause
SCOTIA HOMES (SOUTH) LIMITED
Having their registered office at 23 Bridge Street, Ellon, Aberdeenshire
PURSUERS
against
Mr JAMES MAURICE McLEAN & Mrs LINDA ISABELLA McLEAN
Residing at 1 The Fairway, Kirkcaldy, KY1 3AU
DEFENDERS
Act: Upton, instructed by Thorntons, Dundee
Alt: Davies, instructed by Innes Johnston, Kirkcaldy
Kirkcaldy, 11 January 2012.
The Sheriff having resumed consideration of the cause FINDS IN FACT:
[1] That the Pursuers are property developers and builders. They were from early 2008 seeking purchasers for properties within a development known as Langtoun Maltings, Kirkcaldy.
[2] That the defenders are a married couple, who reside in Kirkcaldy, and in early 2008 were actively searching for properties to purchase.
[3] That the second named defender, hereinafter called Mrs McLean, was on 26 January 2008 driving in Kirkcaldy when she saw the pursuers' site at Langtoun Maltings. This site was newly opened, at a very early stage of preparation with the sales office consisting of a portacabin on the site. Mrs McLean entered the portacabin, having seen an advertising hoarding at the entrance to the site which indicated that 2 and 3 bedroom properties were available to purchase.
[4] That Mrs McLean was met by, and discussed matters with, Gill Nisbet one of the pursuers' sales representatives.
[5] That by that time no formal sales schedules had been completed by the pursuers, and that during their discussions the only documents available to Gill Nisbet were a site plan (of which 5/12 is part), and a price list (not produced).
[6] That Mrs McLean was interested in purchasing a number of properties in early 2008, having recently completed the sale of a public house; and that at least one of the properties to be bought was for one of her sons.
[7] That Mrs McLean, having seen the advertising hoarding, and the site plan, and in discussion with Gill Nisbet, considered that the prime properties in the development were the flats with the large corner window features, being plots 42, 43 & 44. These were respectively ground, first and second (top) floor apartments. She decided to buy plot 44, paid an initial deposit of £500, and signed a reservation form (5/10). The agreed price was £124,950, although if Missives were "returned within 14 days of issue" a discount of £5000 would be applied, leaving a net purchase price of £119,950. The property reserved is described in 5/10 as "Plot Number 44, House type FT12 SF". The reservation form was annotated by Gill Nisbet with " Investor - to rent or for son to move into".
[8] That Gill Nisbet provided Mrs McLean with a plan, showing the proposed layout of plot 44, which she copied from the site plan. That plan is 5/12 of process. It shows an architect's drawing of the plot, originally marked as "Plot 39" but in bold ink is written Plot 42 (GF), Plot 43 (FF) and Plot 44(SF). Three bedrooms in total appear on this plan, marked as bedroom 1, in the lower part of the plan, bedroom 2 next to it, and a further bedroom 1 to the top left corner. There is no obvious access to this second bedroom 1 from the rest of the apartment. On the plan it is separated from it by a series of lines, which are drawn in similar fashion to external walls.
[9] That neither Gill Nisbet nor Dorothy Nesbit advised Mrs McLean that Plot 44 was, or would be, designed and constructed as a three bedroom property.
[10] That Mrs McLean believed that the property she had reserved was a three bedroom flat, and told her husband so on return home; he was unconvinced, immediately noting what he considered to be a dividing wall between the second bedroom 1, and the rest of the flat. That neither defender advised their solicitor, Andrew Baillie, of any uncertainty over the number of bedrooms, nor was the plan 5/12 shown to the solicitor.
[11] That there were no three bedroom flats available for sale by the pursuers in January 2008, nor in June 2008, when Mrs McLean revisited the portacabin to complain about the interior fittings/colour choices plan (5/13) which had been sent to her by the pursuers, and only showed two bedrooms. That this was the first occasion that the pursuers became aware of the defenders' apparent belief that Plot 44 was to contain three bedrooms.
[12] That the pursuers had throughout the period February 2008 to at least July 2008 advertised the development as " Released for sale - 2 & 3 bedroom apartments, prices from £114959 to £124950". That this was inaccurate, as at that time there were no three bedroom properties available.
[13] That the pursuers' solicitors, Thorntons, sent to the defenders solicitor, Andrew Baillie, a pro-forma offer, which Baillie completed and returned to Thorntons with a covering letter, dated 28 March 2008, which offer was accepted by letter from Thorntons dated 31 March 2008. That these letters (5/1 & 5/2) are the Missives by which the pursuers bore to agree to sell and the defenders bore to agree to purchase the subjects forming and known as Plot 44, Langtoun Maltings, Kirkcaldy at a purchase price of £124950. That within the Missives, the subjects are described as "that flatted dwellinghouse being Plot 44 of your development at Langtoun Maltings, Kirkcaldy, and that by condition 1.1 (m) "dwellinghouse" is defined by reference to the House Type referred to in the schedule to the Missives, where it is noted as being FT12 (second floor). That the missives make reference to the site plan 5/14, which shows the attitude, position and location of Plot 44 within the development, and that the detailed plan 5/12 was available to parties before the plot was reserved, and missives concluded.
[14] That the Missives, when read with 5/14 and 5/12 give an adequate and sufficiently certain description of the property being purchased.
[15] That the defenders paid the agreed deposit of £5000 on 4 April 2008, and at that point Plot 44 had not been constructed. That on 12 June 2009, NHBC completion was intimated to the defenders, with local authority habitation intimated on 18 June 2009. On 2 July 2009, the pursuers' agents wrote to the defenders' agent holding the defenders to be in material breach of the Missives, as settlement had been effected by the due date, 25 June 2009. That letter confirmed that the pursuers were now remarketing the property, to minimise any losses. That the balance of the purchase price has not been paid by the defenders.
[16] That Mrs McLean, on receipt of the plan 5/13 contacted her solicitor to advise that she was under the impression that the property reserved as Plot 44 was to contain three bedrooms, rather than the two shown. Baillie's letter to Thorntons, dated 10 June 2008 (6/3), sets out the defenders' position, which was that Mrs McLean had discussed with the pursuers' representative that she wanted a three bedroom flat, and was given an assurance in that regard. The letter suggests that as there is no consensus between the parties, there can be no contract. It seeks return of all monies paid by way of deposit, as the defenders do not wish to proceed with the purchase of a two bedroom property. By letter dated 10 July 2008 (6/4) Thorntons responded with an insistence that the contract will be honoured by the pursuers, and deny any suggestion that the sales staff indicated that Plot 44 would be a three bedroom property. On 11 July 2008, Baillie replied (5/16) restating the belief that the property was to contain three bedrooms, that there was misrepresentation by the pursuers, which was clear from advertising available at the time, and shortly afterwards, and threatening court action for return of the deposit monies paid of £5500. No such action was raised, although new solicitors for the defenders wrote on 18 August 2008 (5/17) restating the defenders position on the representations made, and demanding repayment. In January 2010, the pursuers rescinded the contract due to non-performance by the defenders.
FINDS IN FACT AND IN LAW
1. That there has been no misrepresentation by or on behalf of the pursuers such as to justify reduction ope exceptionis of the Missives.
2. That the Missives are not void from uncertainty
THEREFORE
Repels the defenders 4th and 5th pleas in law; allows a proof before answer on the pursuers' second plea in law, restricted to quantum; appoints the cause to a hearing on expenses on 22 February 2012 at 2.00 pm.
(Signed) A G McCulloch
NOTE :
[1] In this matter, I heard evidence and submissions over a number of days. Proof had been restricted by interlocutor of 1 June 2011 to consideration of the defenders 4th and 5th pleas in law, in the following terms:-
4. The Missives being void from uncertainty as condescended upon, the defenders should be assoilzied from the craves of the initial writ.
5. In any event, the defenders having been induced to enter into the Missives as a result of the misrepresentation of employees of the pursuers, the Missives should be reduced ope exceptionis and the defenders assoilzied from the craves of the writ.
[2] The following authorities were referred to :-
Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154
May & Butcher Ltd v The King [1934] 2KB 1
McArthur v Lawson 1877 4R 1134
Grant v Peter Gauld & Co 1985 SC 251
McClymont v McCubbin 1994 SC 573
NJ&J MacFarlane (Developments)Ltd v MacSweens Trs 1999 SLT 619
Bogie v Forestry Commission 2002 SCLR 278
Daks Simpson Group PLC v Kuiper 1994 SLT 689
Gordon v East Kilbride Development Corp 1995 SLT 62
Sovereign Dimensional Survey v Cooper 2009 SC 382
Braes v Keeper of the Registers of Scotland 2010 SLT 689
Walton-Towers v McPhail 1986 SLT 617
Bell v Lothianleisure Ltd 1990 SLT 58
Richardson v Quercus Ltd 1999 SC 278
R&J Dempster v Motherwell Bridge & Engineering Co 1964 SC 308
R&D Construction Group Ltd v Hallam Land Management Ltd 2009 CSOH 128
Brown v Guild 1972 Ch 53
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