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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gillespie v Gillespie & Ors [2011] ScotCS CSOH_201 (30 November 2011)
URL: http://www.bailii.org/scot/cases/ScotCS/2011/2011CSOH201.html
Cite as: [2011] ScotCS CSOH_201
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OUTER HOUSE, COURT OF SESSION
[2011] CSOH NUMBER 201
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CA126/08
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OPINION OF LORD HODGE
in the cause
JAMES STEVENSON GILLESPIE
Pursuer;
against
(1) THOMAS GRAHAM GILLESPIE, (2) ALLAN WILKINSON STANFIELD GILLESPIE, (3) THE PARTNERSHIP OF THOMAS GRAHAM GILLESPIE, ALAN WILKINSON STANFIELD GILLESPIE, JAMES STEVENSON GILLESPIE AND GARY STANFIELD GILLESPIE Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Iain W. F. Ferguson QC, Simpson; Semple Fraser LLP
Defender: McIlvride; Anderson Fyfe LLP
30 November 2011
[1] I have prepared this supplementary opinion at the request of
the parties because of a lacuna in my earlier opinion ([2011] CSOH 189) in
relation to the status of the option to purchase Ford Farm, which I discussed
in paragraph [10] of that opinion.
[2] Mr Steven Gillespie included within the second and third
declarators that he sought and which I have now granted a finding that the
option agreement was a partnership asset. I made no finding to that effect in
my earlier opinion as I had understood Mr Graham Gillespie's evidence to be
either that the option agreement had expired or that either party was already
in a position to resile from it. In the hearing today on the terms of the
declarators to be pronounced, Mr Ferguson QC referred me to the option
agreement, which had been discussed only briefly in the proof. It revealed
that the agreement had a long-stop date of 16 August 2012. It is not clear from its terms or the other
evidence adduced that circumstances have arisen which entitle either party to
resile from the option agreement. Mr McIlvride did not dispute that.
[3] I concluded in my opinion that Mr Graham Gillespie held the
title to the Ballochney East site on behalf of the partnership. I also held
that the acquisition of the option over Ford Farm related to a proposal to
develop a site which included Ballochney East. That development was one which
Mr Gary Gillespie, among others, promoted. I infer from that context that the
acquisition of Ford Farm was intended to be part of and ancillary to the
development of the Ballochney East site. Accordingly, I conclude that the
partnership business extends to the possible development of Ford Farm and that
it was a business opportunity in which the partnership had an interest when Mr
Graham Gillespie entered into the option agreement. The partnership,
therefore, has an interest in the option agreement and Mr Graham Gillespie
holds that agreement on its behalf.