Stewart Wells Hill And Robert Thomson Hill Against Stewart Milne Limited; Gladedale (northern) Limited (formerly Bett Limited)
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lady Clark Of Calton,Lady Smith |
| Neutral Citation | [2016] CSIH 35 |
| Court | Court of Session |
| Docket Number | XA76/15 |
| Published date | 13 May 2016 |
| Date | 13 May 2016 |
| Year | 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 35
XA76/15
Lady Smith
Lord Brodie
Lady Clark of Calton
OPINION OF LADY SMITH
in the cause
STEWART WELLS HILL and ROBERT THOMSON HILL
Pursuers and Respondents;
against
STEWART MILNE GROUP LIMITED
First Defender and Appellant;
GLADEDALE (NORTHERN) LIMITED (formerly BETT LIMITED)
Second Defender and Appellant:
Pursuers and Respondents: Bartos; Balfour + Manson LLP, Solicitors, Edinburgh
Defenders and Appellants: McIlvride QC; Morton Fraser LLP, Solicitors, Edinburgh
13 May 2016
[1] I have read and considered the opinion of Lord Brodie. I agree with its terms in their entirety and have nothing to add.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 35
XA76/15
Lady Smith
Lord Brodie
Lady Clark of Calton
OPINION OF LORD BRODIE
in the cause
by
STEWART WELLS HILL and ROBERT THOMSON HILL
Pursuers and Respondents;
against
STEWART MILNE GROUP LIMITED
First Defenders and Appellants;
GLADEDALE (NORTHERN) LIMITED (formerly BETT LIMITED)
Second Defenders and Appellants:
Pursuers and Respondents: Bartos; Balfour + Manson LLP, Solicitors, Edinburgh
Defenders and Appellants: McIlvride QC; Morton Fraser LLP, Solicitors, Edinburgh
13 May 2016
Introduction
[2] This is an appeal at the instance of the defenders from an interlocutor of the sheriff at Hamilton dated 10 July 2015. The interlocutor was pronounced after proof. It ordered payment by the first and second defenders jointly and severally to the pursuers of the sum of £345,000. The appeal is also directed at the sheriff’s interlocutor of 18 November 2014 in terms of which she allowed the pursuers to amend by increasing the sum sued for from £265,000 to £345,000. The motion to amend had been made on behalf of the pursuers during a hearing of submissions following the closing of the proof. The motion had been opposed on behalf of the defenders.
[3] The claim for payment which the sheriff upheld in full arose from an obligation constituted by an agreement among the parties executed on 30 and 31 January and 1 February 2007 and registered in the Books of Council and Session on 28 February 2007.
[4] The agreement contemplated the development by the first defender (referred to therein as “SMG”) and the second defender (“Bett”) of subjects of which they were to become proprietors at Morningside, Wishaw (the “MTS site”) for residential purposes and the development by the pursuers (“the Hill Family”) of adjacent subjects of which they were proprietors (the “Hill Family site”), also for residential purposes and, in particular, the building there of no more than 40 two‑storey residential units. The agreement is set out in fuller terms below but in brief it provided: (1) that SMG and Bett would install sewage and surface/storm water drainage systems on the MTS site; (2) that the pursuers would be entitled to connect the Hill Family site to these systems at no cost to them; and (3) that SMG and Bett would use all reasonable endeavours to ensure that the systems would be completed and commissioned by 28 March 2008 (“the Longstop Date”) but in the event that they were not, the pursuers would be entitled to receive payment from SMG and Bett of a penalty of £5000 per month until the systems were completed and commissioned.
[5] The defenders accepted that the sewage and surface/storm water systems were not completed by the Longstop Date of 28 March 2008 and accordingly made payments to the pursuers at the rate of £5000 per month up to and including December 2008. On 13 February 2009 solicitors acting for the defenders wrote to the solicitors acting for the pursuers advising that the defenders would no longer make payments because the sewage system was installed and connected to the public system and had the requisite capacity and the surface/storm water system was for all practical purposes complete and operational with the requisite capacity. Since then the defenders have maintained that position. The pursuers did not accept that the systems had been “completed and commissioned” in terms of the agreement and in 2009 they raised this action craving payment at the rate of £5000 per month from the end of December 2008.
[6] Subsequent procedure included a debate before the sheriff as to whether the clause imposing the obligation to make payment of £5000 per month until the systems were completed and commissioned (clause 2.1 otherwise the “Longstop clause”) constituted an unenforceable penalty. The sheriff’s interlocutor allowing proof was recalled on appeal to the sheriff principal but restored after further appeal to this court, as appears from the opinion published as [2011] CSIH 50. Proof was heard by the sheriff on 23 April 2014 and at subsequent diets. It was concluded on 21 August 2014. On 18 November 2014, on the opposed motion of the pursuers, the sheriff allowed the sum sued for to be amended at the bar from £265,000 to £345,000. On 22 January 2015, having heard parties’ submissions, the sheriff made avizandum. On 10 July 2015 she pronounced the interlocutor which is now appealed directly to this court.
The agreement
[7] The agreement provided, inter alia, as follows (whereas in the original text the fourteen paragraphs of clause 2 are not denominated in any way I have designated them from 2.1 to 2.14 in order to allow the paragraphs of the clause to be identified):
“’MTS Site’ means ALL and WHOLE that plot or area of ground at Morningside, Wishaw registered in the Land Register of Scotland under Title Number LAN 176295.
‘Hill Family Site’ means ALL and WHOLE the subjects registered in the Land Register of Scotland under Title Numbers LAN 182908 LAN 39029 LAN 179727 and LAN 179720.
‘MTS’ means MTS Residential (Scotland) Limited incorporated under the Companies Acts and having their Registered Office at 122 Dundyvan Road, Coatbridge.
‘Installation date’ means the date upon which the sewerage system and surface/storm water system have both been full commissioned and notice of same has been given in writing by Bett and/or SMG to the Hill Family.
…
2.1 Considering that MTS are the owners of the MTS Site and have concluded missives with Bett and SMG for the sale of the said site and that Bett and SMG are to develop their respective parts of the MTS Development Site for residential purposes.
2.2 Further Considering that the Hill Family are the heritable proprietors of the Hill Family Site and intend to develop the Hill Family Site for residential purposes.
2.3 Further Considering that to facilitate the development of the MTS Site, Bett and SMG are to install a sewage system which will connect the MTS site, with the public sewage system in Newmains by way of a pipe, the line of which is shown coloured red on the plan number 1 annexed and executed as relative hereto.
2.4 Further considering that it has been agreed that to facilitate the development of the Hill Family Site, the Hill Family will be entitled to connect to the said sewage system at no cost to them.
2.5 Bett and SMG confirm that the said sewerage system will comply in all respects with the requirements of North Lanarkshire Council as planning authority, Scottish Water and any other interested Statutory authority, that the said sewerage system will have the capacity as at the date of installation of the said systems to serve the development being not more than forty, two storey residential units to be erected by the Hill Family on the Hill Family site and in the event that any alteration, upgrading or improvement of the said sewerage system as proposed is required in order to provide said capacity as at the date of installation of the systems, all costs incurred in that regard will be the sole responsibility of Bett and SMG and the Hill Family shall have no responsibility whatsoever for any such costs incurred.
2.6 Further Considering that to facilitate the development of the MTS Site, Bett and SMG will be installing a surface/storm water drainage system in their respective parts to the MTS Site.
2.7 Further Considering that to facilitate the development of the Hill Family Site, the Hill Family will be entitled to connect to the said surface/storm water system at no cost to them.
2.8 Bett and SMG confirm that the said surface/storm water system will comply in all respects with the requirements of North Lanarkshire Council as planning authority, Scottish Water and any other interested Statutory authority that the said surface/storm system will have the capacity as at the date of installation of the systems to serve the development being no more than 40, two storey residential units to be erected by the Hill family on the Hill Family site and in the event that any alteration, upgrading or improvement of the said surface/storm water system as proposed is required in order to provide said capacity as at the date of installation of the systems, all costs incurred in that regard will be the sole responsibility of Bett and SMG and the Hill Family shall have no responsibility whatsoever for any such costs incurred.
2.9 Bett and SMG shall provide written notice to the Hill Family that both the sewerage and surface/storm water drainage systems have been fully completed to the satisfaction of all relevant statutory authorities within twenty one days of the date of completion as aforesaid.
2.10 Bett and SMG have agreed that they shall, within two calendar months and at their cost, if required by North Lanarkshire Council, or the Hill Family, amend the existing planning consent, reference S/04/02128/REM dated 21st Dcember 2005 to accommodate the enlargement of the SUDS pond and variation of existing finished floor levels, if this is required to facilitate the Hill Family’s existing planning consent reference S/04/01837/FUL approved 22nd December 2005 but only where this is necessary as has been identified within the Morningside Development Risk Assessment completed by WA Fairhurst dated September, 2004 and...
To continue reading
Request your trial
- Yaw Chun Soon v Newfields Land Sdn Bhd
-
New Ingliston Limited Against Edinburgh Airport Limited
...v Capita Insurance Services Ltd, Ramoyle Development Ltd v Scottish Borders Council 2019 SLT 284, Hill & Another v Stewart Milne Group [2016] CSIH 35 or 2017 SCLR 92, James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd 1970 AC 583, Tesco Stores Ltd v Dundee City Counci......
-
Stewart Wells Hill And Robert Thomson Hill Against Stewart Milne Group Limited And Gladedale (northern) Limited (formerly Bett Limited)
...69)), r 42.1Stewart Wells Hill and Robert Thomson Hill successfully appealed to the Court of Session against a decision of the sheriff ([2016] CSIH 35). On 12 July 2016, the court found the respondents liable in the expenses of both the appeal and the action in the sheriff court. The appell......