Short's Trustee v Chung (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 12 March 1999 |
| Date | 12 March 1999 |
| Docket Number | No 50 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Johnston
Practice—Res judicata—Bankruptcy—Gratuitous alienation—Heritable property and conveyancing—Registration of title—Pursuer successful in action of reduction of dispositions—Keeper of Registers refusing to register reductions—Pursuer bringing fresh action for alternative remedy—Whether same media concludendi—Whether res judicata—Bankruptcy (Scotland) Act 1985 (cap 66), sec 34(4)1
A trustee in sequestration obtained decree of reduction in terms of sec 34 of the Bankruptcy (Scotland) Act 1985 of dispositions of certain properties. Title to the properties had been registered, before sequestration, in the Land Register. The trustee then applied to the Keeper of the Register for rectification or alteration of the Register, founding upon the reduction. The Keeper refused. The trustee brought an unsuccessful petition for judicial review of that decision. He then sought an order under sec 34 for the delivery to him of a disposition of the properties by the person having title in terms of the Register, who had been a party to the prior proceedings for reduction and judicial review. She pled res judicata. The Lord Ordinary (Johnston) repelled that plea and granted decree de piano. The defender reclaimed.
Held (affg judgment of Lord Johnston) (1) that what had to be decided was whether there was repetition of litigation which resulted in the parties, subject-matter and media concludendibeing the same; (2) that as the original action only dealt with reduction and not the restoration of the property to the debtor's estate, the nature of the second action was different; and reclaiming g motion refused.
George Douglas Laing, the permanent trustee on the sequestrated estates of Alexander Short brought an action under sec 34 of the Bankruptcy (Scotland) Act 1985 against Tai Lee Chung seeking an order ordaining her to deliver to him a disposition of certain heritable subjects by her on a registered title.
The defender pled res judicata and the cause called before the Lord Ordinary (Johnston) in procedure roll for hearing.
At advising, on 14 October 1997, the Lord Ordinary repelled the defender's plea: see Short's Trustee v ChungSC 1998 SC 105.
The defender reclaimed.
Cases referred to:
Edinburgh and District Water Trustees v Clippens Oil Co LtdUNK (1899) 1 F 899
Glasgow and South Western Railway Co v Boyd and Forrest 1918 SC (HL) 14
Grahame v Secretary of State for ScotlandSC 1951 SC 368
Short's Trustee v ChungSCSC 1991 SLT 472; 1994 SC 122; 1996 SC (HL) 14
The reclaiming motion called before an Extra Division, comprising Lord Prosser, Lord Caplan and Lord Morison for a hearing on the summar roll.
At advising, on 12 March 1999, the opinion of the court was delivered by Lord Prosser.
Opinion Of The Court—The pursuer in this action is George Douglas Laing, the permanent trustee on the sequestrated estates of Alexander Short (“the bankrupt”). In terms of the first conclusion of the summons, the pursuer seeks decree ordaining the defender Tai Lee Chung to execute and deliver to the pursuer a disposition of two flats on the ground floor of a tenement building at 62 Great George Street, Glasgow, title to which is registered in the defender's name in the Land Register of Scotland under title Nos GLA13339 and GLA13328. The defender's pleas-in-law include a plea to the effect that the matters condescended upon being res judicata,the action should be dismissed. By interlocutor dated 14 October 1997, the Lord Ordinary repelled the defender's pleas-in-law, and granted decree de piano in terms of the first conclusion of the summons, ordaining the defender to execute and deliver to the pursuer a disposition of the two flats in question. On behalf of the defender, it was not and is not disputed that this decree de piano would be appropriate if the Lord Ordinary was justified in repelling the plea ofres judicata. However, the defender reclaims, contending that the Lord Ordinary's interlocutor should be recalled, that the plea ofres judicata should be sustained, that the pursuer's pleas should be repelled and that the action should be dismissed.
The defender is the widow of the late Shek Chung. In 1986, the bankrupt granted dispositions of the two flats in question in favour of Shek Chung. Shek Chung subsequently granted dispositions of the two flats in favour of the defender. The defender's title to the two flats was registered in the Land Register of Scotland, following upon these dispositions, on 28 May 1987. On 3 June 1987, decree of sequestration of the bankrupt's estate was pronounced in the sheriff court at Hamilton. Thereafter, in an action at the instance of the present pursuer against the present defender both as an individual and as the personal representative of her late husband Shek Chung, the pursuer sought and obtained reduction of the two dispositions by the bankrupt to Shek Chung, and also the two dispositions by Shek Chung to the present defender. Notwithstanding the reduction of these dispositions, the defender's title to the flats stood, being registered in the Land Register of Scotland. Founding upon the reduction of the dispositions which had led to that registration, the pursuer sought rectification or alteration of the Land Register; but this was refused by the Keeper of the Registers of Scotland, and a petition by the pursuer seeking judicial review of that refusal was dismissed by the Lord Ordinary in December 1992. A reclaiming motion against that dismissal was unsuccessful, as was a subsequent appeal to the House of Lords. The proceedings in the action of reduction (which we shall refer to as “the original action”) both in the Outer House and before the Second Division are reported at 1991 SLT 472; and the proceedings in the petition for judicial review are reported at 1994 SC 122 and 1996 SC (HL) 14. These reports show the basis upon which decree of reduction was granted, and the reasons for upholding the refusal by the Keeper of the Registers of Scotland to rectify or alter the Land Register, notwithstanding the reduction of the dispositions. Put shortly, the reductions were granted in terms of sec 34(4) of the Bankruptcy (Scotland) Act 1985, the dispositions by the bankrupt being for inadequate...
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