Thomas Barr V. James Wilson Gilchrist+hawkhill Estates Limited+fearann Limited+heather Anna Gilchrist
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2011] CSOH 72 |
| Date | 25 March 2011 |
| Docket Number | CA145/10 |
| Court | Court of Session |
| Published date | 05 May 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 72 | |
| CA145/10 | OPINION OF LORD HODGE in the cause THOMAS BARR Pursuer; against (1) JAMES WILSON GILCHRIST (2) HAWKHILL ESTATES LIMITED (3) FEARANN LIMITED AND (4) HEATHER ANNA GILCHRIST Defenders: ________________ |
Pursuer: Ellis, Q.C.; Burness LLP
Defender: Hawkes; McLure Naismith LLP
25 March 2011
[1] This is a motion for interim decree against the second defender, which failing, summary decree, in the sum of £850,000. As a further fall back, the pursuer seeks payment of £733,793.36, in each case with interest from 2 August 2010 until payment.
Background Facts
[2] The facts are not in dispute. The pursuer ("Mr Barr") and the second defender ("Hawkhill") were parties to a joint venture, which may or may not have included the first defender ("Mr Gilchrist"). Mr Barr provided the joint venture with £1 million as a fifty per cent contribution to that venture which was established to purchase and resell Omne House, an office building at Riverside Business Park, Irvine. Mr Barr and Hawkhill entered into a short minute of agreement dated 7 September 2005 in which the parties agreed (i) to contribute equally to the purchase of the property, (ii) that the property would be sold on as advantageous terms as possible, and (iii) that the net profit on sale of the property would be divided equally between Mr Barr and Hawkhill.
[3] Mr Gilchrist, who is an architect, owned one hundred per cent of the shares in Hawkhill. He has had other dealings with companies under the control of Mr Barr. Certain disputes have arisen between entities controlled by Mr Gilchrist and those controlled by Mr Barr.
[4] The third defender ("Fearann") was incorporated in 1994. Its directors were Mr Gilchrist and his wife, who is the fourth defender ("Mrs Gilchrist"). By 2008, all of the shares in Fearann were held by Mrs Gilchrist. In about July 2010, Mr Gilchrist's shares in Hawkhill, were transferred to Fearann, which thereby became the parent company of Hawkhill in return for two hundred shares in Fearann. Thereafter, Mrs Gilchrist transferred her shares in Fearann to Mr Gilchrist, making him the sole shareholder in Fearann.
[5] In about August 2010, Hawkhill transferred the title to Omne House to Fearann for a consideration of £1,700,000. This reflected an independent valuation of the property at about that date. Fearann borrowed money from The Royal Bank of Scotland plc to fund the acquisition. Thus the property was transferred from the company, which was a party to the joint venture and was under the control of Mr Gilchrist, to another company in his control, which was not a party to the joint venture.
[6] The first to third defenders aver in Answer 9 of their defences:
"Explained and averred that the second defender has various claims for payment against Barr Heritable Limited (the pursuer's trading company) arising from other developments, which are the subject of separate proceedings in this court. At a meeting between the pursuer and the first defender before either proceedings were raised, the pursuer stated that these claims were not going to be paid. No reason was given. In light of the pursuer's stated position, the second defender, in an attempt to improve the position of the third defender in relation to the third defender's claim against the pursuer's trading company, Barr Heritable Limited, undertook the transfer of the property to the third defender."
[7] At a Preliminary Hearing in this action on 23 March 2011 Mr Hawkes accepted that, along with others, Hawkhill was liable to account to Mr Barr for a one-half share of the net value of the property and also for his share of the rental earned from the property since 2005, less disbursements which Hawkhill had made...
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Maritsan Developments Limited v The Commissioners for Her Majesty's Revenue & Customs, TC 01971
...documents not history. He made submissions on the nature of joint venture under reference to Mair v Wood 1948 SC 83, Barr v Gilchrist 2011 CSOH 72, Miller on Partnership 2nd edition ch 15, Dollar Land (Cumbernauld) Ltd CIN Properties Ltd 1996 SLT 186, Strathearn Gordon Estates 40 1985 VATTR......