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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Moggach v Milne [2004] ScotSC 69 (22 October 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/69.html
Cite as: [2004] ScotSC 69
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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN
A451/01
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JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC |
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in the cause |
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GEORGE ALEXANDER MOGGACH |
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Pursuer and Appellant |
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against |
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MARGARET JANE MILNE |
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Defender and Respondent |
Act: Mr John Halley, advocate, instructed by Cockburns, Elgin
Alt: Mr M G Kemp, solicitor, Dean Thomson & Co, Elgin
Elgin: 22nd October 2004
The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 18th December 2003 to the extent that he repelled the pursuer's first plea-in-law and before answer allowed both parties a proof of their respective averments; reserves meantime all questions of expenses and appoints parties to be heard thereon at Elgin Sheriff Court on Tuesday 2nd November 2004 at 2.00 pm.
Note
[1] In this case the pursuer and appellant seeks decree against the defender and respondent for payment by her to him of the sum of £50,000 by way of recompense for what the pursuer avers has been the defender's unjust enrichment as a result of the expenditure of money and the provision of services by him. [2] The pursuer's pleadings are not exactly a model of clarity, and in order to understand his case, which is essentially a simple one, it would I think be helpful firstly to summarise briefly the basic principles which underpin the law relating to unjust enrichment. In doing so, I acknowledge my indebtedness to the lucid exposition of the subject by Lord President Rodger in Shilliday v Smith 1998 SC 725. [3] Let it be assumed that A expends money or provides services in such a way as to confer a benefit (in other words, to enrich) B, and let it be assumed too that there is no legal ground upon which B would be justified in retaining this benefit. In many cases A may have acted in suo, that is primarily for his own purposes, and the resulting benefit conferred upon B may be purely incidental. In such a case B incurs no liability to A. But in other cases there may be some factor present which makes B's enrichment at A's expense unjust. In the case of the condictio causa data causa non secuta this factor may be, for example, that A has paid money or transferred property to B either in the expectation of receiving a consideration from B which B does not in the event provide or on a particular basis which in the event fails to materialise. Where such a factor is present, the law obliges B to reverse the enrichment. For this purpose various remedies may be open to A, of which repetition, recompense, restitution and reduction are perhaps the most common. [4] In the present case the remedy sought by the pursuer is recompense. In article 2 of the condescendence he avers that he and the defender formed a relationship which lasted for around twenty years prior to their separation at the end of October 2001. He avers that in around August 1985 they jointly acquired a house in Culloden for the sum of £28,000. He then says that in about February 1986 they decided to purchase a property at 6 Milne Lane, Duffus after they had both viewed the property. He avers that the intention of the parties was to have the title taken in joint names and that he was led to believe that this would be done. It is not in dispute that the parties jointly applied to the Clydesdale Bank for bridging finance to purchase the house at Duffus and that on 29th May 1986 they signed an irrevocable mandate in favour of the bank in relation to the net free proceeds from the anticipated sale of the property at Culloden. A bridging loan account was opened by the bank in the name of both parties and on 30th May 1986 a cheque for £13,175 was drawn on this account signed by the defender alone. This sum was evidently applied towards the purchase of the new house. (In passing, I observe that the price of the new house is variously stated at different points in the pleadings to have been £13,175 or £13,176. It is not clear which is correct, and I dare say that it does not much matter for present purposes). The pursuer admits that the offer submitted for its purchase was in the sole name of the defender, that she settled the fees due to her solicitors regarding the purchase and that the title to the property was taken in her sole name. The pursuer admits also that the parties moved into the new house in about June of 1986, that the defender then applied for planning permission and obtained grants for the improvement of the property, that she did so in her own name and that he discovered at that stage that the title to the property had been taken only in her name and not in their joint names. He avers that the property at Culloden was then sold in July 1986 for £29,750. Finally, on this branch of his claim he avers towards the end of article 2: "At no time did the pursuer have any intention gratuitously to donate or to confer any other gratuitous benefit on the defender. Prior to the purchase of the property by the defender the pursuer reasonably believed and anticipated that title to the said property would be taken in common. The pursuer's reasonable belief was erroneous". [5] The pursuer also avers in article 2 what happened after he discovered that the title to the property at Duffus had been taken in the name of the defender alone. He says that he was made redundant in about August 1986 and received a substantial redundancy payment. He avers that the parties jointly obtained a home improvement loan from the Bank of Scotland in 1988 and that in addition they obtained a grant from Moray Council. He avers that, while building work was required to upgrade the new property, he purchased a residential caravan for the parties to live in at a cost of £2,000. He says that, after it had been purchased, he allocated a great deal of his time and private finances to the improvement of the house. He specifies in some detail what these works were and he avers that they had a value of over £24,000. He admits that the parties' relationship became difficult while they were still living at the house in Culloden, that at Christmas 1985 the defender identified the new house at Duffus and presented the pursuer with an ultimatum that he had no option but to accede to her wish to purchase it, and that they had reconciled by the time they moved into it around June 1986. But he then admits that in 1987 further difficulties occurred between them. Despite this somewhat inauspicious background and the fact that he had soon after its purchase discovered that the title to the new house had been taken only in the defender's name, the defender avers at the end of article 2: "After the purchase of the property by the defender the pursuer reasonably believed that he would receive at least one half pro indiviso share in said property. The pursuer's reasonable belief was based upon the continuing relationship of the parties and the prospect of their future marriage. The pursuer's reasonable belief was erroneous". [6] In article 3 the pursuer avers, inter alia:Throughout their residence at 6 Milne Lane, Duffus the parties discussed at various stages the placing of the property into joint names. The defender ultimately refused to co-operate in any such transaction and, following an argument on this topic, the defender asked the pursuer to leave the home. The pursuer now has his own privately rented accommodation. In the circumstances the defender has been unjustly enriched by the actings and expenditure of the pursuer and is due to recompense the pursuer for the funds expended by the pursuer in respect of the purchase and subsequently the improvement of the dwellinghouse at 6 Milne Lane, Duffus. Admitted that following the discovery that the title to the property had not been taken in joint names, the pursuer did indicate to the defender that the property should be placed in joint names. Admitted that on occasion the pursuer was angry that the property had only been taken in the defender's name and that she refused to co-operate in the placing of the title into joint names ..... Averred that the placing of the property in joint names was an issue entirely separate from any plans the parties had in relation to marriage.
In the circumstances hereinbefore averred, the defender is due to make recompense to the pursuer. The pursuer has incurred outlays, expenses and other financial loss, all as hereinbefore condescended upon. In addition, the pursuer has put his efforts into the enhancement of the said property on a consistent and ongoing basis since its acquisition by the defender. The said property has increased in value to a significant extent as a result of the pursuer's efforts, outlays, expenses and other financial loss. The said property has increased in value from about £13,000, at the date of acquisition by the defender, to about at least £85,000 at present valuation. In the circumstances that the defender has been unjustly enriched, the pursuer has suffered corresponding loss. The measure of the defender's unjust enrichment falls to be assessed quantum lucratus . Consequently, the measure of the pursuer's loss falls to be assessed at one half of the present day value of the said property. In the circumstances hereinbefore condescended upon it is just and equitable that the defender make payment to the pursuer as craved. In the circumstances hereinbefore condescended upon, unless decree is granted as craved the defender will reap an unjustified benefit at the expense of the pursuer.
(In light of the figure of £85,000 stated in this article, it might have been thought that the sum sued for would be £42,500. It was explained that £50,000 had been selected instead to allow for the possibility that the value of the house had increased further since the action was raised).
[8] In response, the defender admits in answer 2 that the title to the property at Duffus was taken in her sole name but she denies that the parties jointly decided to purchase this property, that it was their intention to have the title taken in joint names or that the pursuer made any contribution to the purchase price, legal expenses or any other expenses associated with the purchase of the property. She avers that the circumstances in which it was purchased were as follows:Averred that the parties agreed that the sale proceeds of (the house at) Culloden would be divided between them in accordance with the contributions made by each of them to the purchase price. The pursuer's contribution to the purchase price included his borrowing £10,000. The defender had not required to borrow funds. The pursuer accepted that the proceeds should be divided approximately £5,000 to the pursuer and £15,000 to the defender to reflect the greater contribution made by the defender. The pursuer received the sum of approximately £5,000 on the sale of the property. The defender made use of her funds amounting to approximately £15,000 to purchase the property at Milne Lane, Duffus. As the purchase of the property at 6 Milne Lane, Duffus settled on 30th May 1986 Clydesdale Bank plc agreed to produce funds on the security of the sale price of the property (at) Culloden. As this property was in joint names such bridging finance would only be obtained with the co-operation of the pursuer. However the pursuer made no contribution to the purchase price of the property ..... The cheque used to settle the purchase price of £13,175 was paid from her share of the proceeds of (the house at) Culloden. The defender settled the fees due to her solicitors regarding the purchase. Title to the property was taken in the sole name of the defender. The purchase price of the property was £13,176. On the sale of the property (at) Culloden the proceeds were divided in accordance with the contribution made by the parties. The defender used her resources to purchase 6 Milne Lane, Duffus. The pursuer did not contribute nor did he make use of a redundancy payment since he was not made redundant until later in 1986.
Throughout the period of the parties' relationship the pursuer generally expected the defender to provide all necessities. He would pay her £20 per week until towards the end of their relationship when this figure rose to £50 per week. From this figure the defender was to feed the parties and provide all necessities. The pursuer is called upon to detail the contributions made by him towards the parties' expenses. Averred that the contribution made by the pursuer was no more than would be expected from a partner occupying a property owned by the defender. Any expenditure by the pursuer was therefore to benefit himself as he was obtaining the benefit of occupation of a property without realistic expenditure for this benefit.
- The defender's averments being irrelevant et separatim lacking in specification proof should be restricted to the issue of quantum.
3. The pursuer's averments being irrelevant et separatim lacking in specification the action should be dismissed.
[15] In support of his interlocutor the sheriff wrote a helpful note in which, in short, he expressed the opinion that the averments in support of the pursuer's claim were of doubtful relevancy. But, the defender's solicitor having declared himself content that there should be an inquiry into these averments, the sheriff concluded that the appropriate course would be to reserve a decision on their relevancy until after inquiry. As for the pursuer's first plea-in-law, the sheriff was of the opinion that the defender's averments presented a relevant defence to the pursuer's claim and that they were not, as had been argued for the pursuer, so lacking in candour as to justify the restriction of proof to quantum only. It was in these circumstances that the sheriff repelled the pursuer's first plea-in-law.
[16] Opening the appeal, counsel for the pursuer submitted that I should recall the sheriff's interlocutor of 18th December 2003, sustain the first plea-in-law for the pursuer, repel all the defender's pleas-in-law with the exception of that which related to the amount claimed by the pursuer and remit the cause to the sheriff to proceed with a proof restricted to the issue of quantum in terms of the pursuer's first plea-in-law. Counsel proceeded to analyse the pursuer's pleadings and in short submitted in light of the decision in Shilliday v Smith that the pursuer's averments were relevant to support his claim for recompense. Against this background he submitted that the sheriff had erred in law in reserving the defender's third plea-in-law and in allowing a proof before answer in respect of the pursuer's averments. He submitted that the sheriff's doubts about the relevancy of the pursuer's case were ill-founded and that the defender's third plea-in-law should therefore have been repelled. He drew attention to the test of relevancy as stated in Macphail's Sheriff Court Practice (2nd Edn) at para. 9.33, namely that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved - see Jamieson v Jamieson 1952 SC (HL) 44. Given that the sheriff had not dismissed the pursuer's action as irrelevant, I found this particular submission by counsel somewhat hard to understand. [17] Counsel drew attention to a passage in the sheriff's note at page 7 where he wrote: "I have reservations about the degree of specification averred by the pursuer in respect of matters of crucial importance to his case: in particular his averments are silent as to how he was led to believe that title to the Duffus property was to be taken in joint names". Counsel submitted that there were ample averments on this particular point. He referred to the averments at the outset of article 2 to the effect that parties had formed a relationship which lasted for around twenty years prior to their separation at the end of October 2001, that in around 1986 they were the joint owners of the house at Culloden having purchased it in around August 1985 for the sum of £28,000, that they decided to purchase the house at Duffus and that this purchase was financed from the free proceeds from the sale of the house at Culloden. Counsel submitted that, if two parties owned a house in joint names and then sold it, it was reasonable to assume that the title to their next home would be taken in joint names if the funds for its purchase were provided by both parties or if the purchase was funded by monies borrowed by both parties, as had happened in the present case. Counsel submitted that the sheriff had erred in law in his criticism here of the lack of specification in the pursuer's pleadings. [18] In response, the defender's solicitor submitted that the sheriff had been entitled to have reservations about the specification given here by the pursuer. For my own part, I share these reservations. In my view the question whether the pursuer's belief that the title to the property at Duffus would be taken in joint names was a reasonable one is likely to have depended on other considerations apart from those covered in the averments to which counsel drew attention. Here I have in mind, for example, the content of discussions between the parties before the property was purchased. The pursuer has nothing to say about these. Interestingly in this context, he denies having met the defender's solicitor in connection with the purchase of the property. On the other hand, I think that the averments referred to by counsel, if proved (to the extent that they are not already admitted), would be sufficient to entitle the sheriff to draw the inference that the pursuer reasonably believed that the title to the property at Duffus would be taken in joint names. So I think there is just enough specification here. Whether this would be the correct inference to draw is of course another matter. [19] Counsel then referred to the passage, again on page 7 of his note, where the sheriff wrote:It also seemed to me that there was at least the possibility of a contradiction between his assertion that he (the pursuer) had been led to believe that the title would (my emphasis) be taken in joint names and his averment that his later reasonable belief was based not on any representation by the defender but on his continuing relationship with the defender and the prospect of their future marriage. If he had already been led to believe that the title would be taken in joint names, what is the relevance of the basis for the later reasonable belief?
Counsel submitted that the sheriff had erred here in thinking that there was a contradiction in the pursuer's position. In this I thought counsel was correct. In a nutshell the pursuer's claim for recompense is based upon two separate factors, between which there is no contradiction. In the first place he says in effect that he contributed to the purchase price of the house at Duffus (through the mechanism of the joint bridging facility) upon the reasonable belief that the title to the property would be taken in joint names. Secondly, when he learnt that this had not happened, he says that he carried out work and incurred expense in the improvement of the house upon the reasonable belief that he would receive at least a one half pro indiviso share in the property. These, according to him, are the two separate factors which make the pursuer's enrichment at his expense unjust.
[20] Counsel next turned his attention to the passage in the sheriff's note at pages 7/8 where he wrote:
While it might be said that this was all against the background of the purchase price having been paid by both parties from the free proceeds of sale of the (Culloden) property, it might be argued that the pursuer fails to fully answer the defender's averment that the price was funded only from her share of the free proceeds of the (Culloden) property. The obtaining of bridging finance from the bank is neither here nor there: the pursuer should clearly aver how the bridging loan was repaid, i.e. whether he contributed any funds to that repayment. The answer to the question "who paid for the Duffus property?" is to be found not from the reason that the Clydesdale Bank provided bridging finance, but from the source of the funds used to repay the bridging loan.
Counsel explained that the pursuer's position was that the purchase of the house at Duffus had been funded by a bridging loan from the Clydesdale Bank in respect of which both parties had been jointly and severally liable. This loan had been taken on the security of the net free proceeds of sale of the house at Culloden. The pursuer had denied the defender's averments about how this loan was repaid, and he could not be criticised for having done so. The sheriff, so it was said, had placed an onus on the pursuer to aver and prove that the bridging finance had been obtained by both parties and had then been repaid out of the net free proceeds of sale of the property at Culloden, and further that the pursuer had repaid his share of the loan out of these. It was submitted that the sheriff had fallen into error in this respect and had inverted the onus of proof by imposing an onus on the pursuer to disprove the defender's averments.
[21] In my opinion there is no substance in these submissions. The first branch of the pursuer's claim for recompense is based upon the proposition, as I understand it, that he contributed to the purchase price of the property at Duffus in the reasonable belief that the title to the property would be taken in the joint names of the parties. So the onus is on him to aver that he did so contribute, and further to aver what proportion of the price he paid. Here it will be recalled that the amount he is seeking by way of recompense is one half of the present day value of the property. Whether or not it is just and equitable that he should receive this must depend upon a variety of factors, one of which is what proportion of the price he paid in the first place. If he paid half the price, his claim might be thought to be appropriate. On the other hand if, for example, he paid only one tenth of the price then it might be thought that his claim was exaggerated. The defender's position of course is that he paid nothing towards the purchase price and that she paid it in full. The pursuer effectively has to rebut this in his averments, not because there is an onus on him to disprove the defender's averments, but because there is an onus on him to aver the factual basis upon which his claim to recompense depends. Moreover, he must do so in sufficiently specific terms to give the defender fair notice of what it is that he hopes to prove. [22] In my view the pursuer does none of these things. He avers that the purchase of the house at Duffus was financed from the free proceeds of sale of the house at Culloden. He avers that this last house was jointly owned by the parties, but it does not follow that the free proceeds of sale were divided equally between them and the pursuer has nothing to say about the proportions in which these free proceeds were divided. Nor does he say in terms what was the amount of these free proceeds. He says that the house at Culloden was sold in July 1986 for £29,750, and he then refers to a copy Search Sheet from the General Register of Sasines for the County of Inverness. This is no. 5/5 of process, and it shows that when they bought the house at Culloden the parties granted a standard security for £10,000 in favour of the National and Provincial Building Society. Approximately thirteen months later this standard security was discharged, no doubt after the balance of the loan of £10,000 had been repaid out of the proceeds of sale of £29,750. So it seems a reasonable inference from what the pursuer avers that the net free proceeds of sale of the Culloden house were of the order of £20,000. The pursuer admits that the purchase price of the house at Duffus was £13,176 which is £6,824 less than £20,000. On the assumption that this sum of £20,000 fell to be divided equally between the parties, the pursuer's pleadings are silent upon what proportion of each party's share was applied towards the purchase price of the house at Duffus. It is perfectly possible, for example, that the defender might have paid £10,000 and the pursuer £3,176 retaining the balance of £6,824 for himself. But of course the assumption that the free proceeds of sale of the house at Culloden were to be divided equally between the parties may itself be mistaken. One cannot tell in light of the pursuer's pleadings. [23] In point of fact the pursuer goes on to aver that on 29th May 1986 an irrevocable mandate was accepted by Clydesdale Bank plc covering the net free proceeds from the anticipated sale of the property at Culloden. A copy of this is said to have been produced and its terms incorporated in the pursuer's pleadings. Presumably this is meant to be no. 5/4 of process which is in fact a copy of a bridging loan agreement between the pursuer and the defender on the one hand and the bank on the other. The amount of the loan was £13,200, and it was provided that it should be secured by an irrevocable mandate covering the net free proceeds of sale of the property at Culloden. Provision was made for repayment of the loan on demand but subject to this it was stated that the bank envisaged that the loan would be repaid by the free proceeds of sale of the house at Culloden. Condition 6 (not 8 as averred by the pursuer) stipulated in effect that the parties' liability in respect of the loan should be joint and several. The pursuer avers that the "irrevocable mandate was necessary for the parties to obtain joint bridging finance in order to purchase the property" at Duffus and that on 30th May 1986 a cheque was drawn on the bridging account and signed by the defender. A copy of this cheque has been produced by the pursuer - see no. 5/6 of process. The original has been lodged by the defender - see no. 6/3 of process. It is indeed dated 30th May 1986 and signed by the defender alone, and is for the sum of £13,175. [24] The pursuer's account of the purchase of the house at Duffus ends somewhat abruptly at this point leaving various questions unanswered. In particular nothing is said about how the bridging loan came to be repaid. It is no doubt true that, when the cheque for £13,175 was drawn on the account to pay for the house at Duffus, the pursuer incurred a joint and several liability along with the defender to repay this sum to the bank. I can understand therefore how it might have been said at that stage that the parties had jointly paid for the house. But of course that was not the end of the story since the loan was only a temporary one. In order to determine whether, at the end of the day, the pursuer in truth contributed to the purchase price at Duffus, it will be necessary to establish what happened when the loan was repaid. If, for example, it was repaid wholly by the defender out of her share of the free proceeds of sale of the house at Culloden, then in substance she alone would have paid for the house at Duffus. By the same token, if the loan was repaid in full by the pursuer, then he alone would have paid for the house. [25] In short, I think that the sheriff's reservations on this aspect of the pursuer's pleadings were well founded, and I do not think that he erred in law here. It might have been thought that the defender's solicitor would, at the very least, have proposed to the sheriff that certain of the pursuer's averments should be excluded from probation. But he evidently did not do so, instead declaring himself content that there should be an inquiry into the pursuer's averments. In these circumstances the sheriff reserved the defender's third plea-in-law and allowed a proof before answer of the pursuer's averments. Before me the defender's solicitor commended the sheriff's reasoning and decision, and since I agree with his criticisms of the pursuer's pleadings in relation to the third of the issues raised by counsel, I think that the proper course would indeed be to allow a proof before answer of the pursuer's averments under reservation of the defender's third plea-in-law. [26] Turning to the pursuer's first plea-in-law, counsel submitted that the averments in answer 2 which I have quoted in paragraph [8] above, while not irrelevant, were essentially lacking in candour to the extent that they did not present a proper defence to the pursuer's case. Counsel submitted that there was not to be found in the defender's averments a proper and candid analysis of how the property at Duffus had been purchased, namely that funds had been borrowed for the purpose from the bank by both parties as joint and several obligants. It was submitted that the defender's averments presented an inaccurate and misleading statement of the mechanism utilised to effect the purchase of the property at Duffus and, contrary to what the sheriff had said in his note at page 10, the defender had not averred that she alone had repaid the bridging loan from her own resources. In the circumstances the sheriff had erred in law in failing to sustain the pursuer's first plea-in-law. [27] In my opinion, in criticising the defender's pleadings counsel afforded an excellent illustration of the proverbial pot calling the kettle black. It is true that the defender's averments are not framed as clearly as they might be, but I consider that they give sufficient notice to the pursuer of what it is that the defender hopes to prove in relation to the means of payment for the house at Duffus. Towards the beginning of answer 2 she admits that on 29th May 1986 an irrevocable mandate was accepted by the bank. She admits too the terms of the irrevocable mandate (and this plainly is a reference to the bridging loan agreement). She admits that she wrote the cheque on 30th May 1986, and later on she denies, as she is entitled to do, that the purchase of the house at Duffus was financed from the free proceeds from the sale of the house at Culloden or that the pursuer made any contribution to the purchase price of the house at Duffus. Then in the passage quoted in paragraph [8] above she avers that the pursuer accepted that the proceeds of sale of the house at Culloden should be divided approximately £5,000 to him and £15,000 to her and that he received the sum of approximately £5,000 on the sale of the property. She says that she made use of her funds amounting to approximately £15,000 to purchase the property at Duffus. She then refers to the bridging loan and avers once more that the pursuer made no contribution to the purchase price of the property at Duffus. She says that the cheque used to settle the purchase price of £13,175 was paid from her share of the proceeds of the house at Culloden and she repeats that these proceeds were divided in accordance with the contribution made by the parties. She avers that she used her resources to purchase the house at Duffus. It is true that she does not state explicitly that the house at Duffus was paid for initially out of funds borrowed from the bank for the repayment of which both parties were jointly and severally liable and that thereafter, by agreement between the parties, the pursuer was paid his share of the proceeds of sale of the house at Culloden while the defender paid off the bridging loan in full out of her share of these proceeds. But in my opinion all this is plainly implicit in what the defender does say and sufficient notice has been given to the pursuer of the defender's case in this respect. [28] In conclusion counsel presented an argument based upon the familiar "weaker alternative" rule. He referred to the first and second pleas-in-law for the defender which read as follows:- The defender not having been unjustly enriched by the acting (sic) and expenditure of the pursuer the pursuer is not entitled to decree as craved.
- Esto the defender has been enriched by the actings and expenditure of the pursuer, which is denied, the circumstances are such that the defender is not due to recompense the pursuer and the pursuer is not entitled to decree as craved.
Counsel submitted that the second of these pleas was unsound in law. He contended that, if the defender had been enriched by the actings and expenditure of the pursuer, then the obligation of the defender to make recompense to the pursuer arose by operation of law and the circumstances could not operate to deny recompense to him - see Shilliday v Smith.
[29] At first blush it seemed to me that these two pleas-in-law were saying very much the same thing. The defender's solicitor explained that the first plea-in-law was intended to cover the situation in which, as was maintained by the defender, there had been no actings and expenditure on the part of the pursuer as a result of which she had been enriched. As for the second plea-in-law, this was designed to cover the situation in which, on the assumption that there had been such enrichment, there was no factor present which made that enrichment unjust so that it had to be reversed. [30] For my own part, I do not consider that either of these pleas-in-law is unsound. In particular I reject counsel's submission about the second plea-in-law. It is quite correct to say that the obligation to reverse an unjust enrichment arises by operation of law. But the obligation only arises in the first place if there is a factor present which makes the enrichment unjust. In her second plea-in-law the defender is saying that there was no such factor. In any event, it pre-supposes the defender's enrichment by the actings and expenditure of the pursuer, and the point of the first plea-in-law is that there has been no such enrichment. In light of the explanation given by the defender's solicitor it might indeed have been preferable to have omitted the word "unjustly" from this first plea-in-law, but in my opinion its meaning is perfectly clear. [31] According to counsel, as I understood him, the two alternative versions in the defences to which the "weaker alternative" rule fell to be applied were, on the one hand, the defender's assertion that the pursuer had known all along that the title to the property at Duffus would be taken in her name alone and, on the other hand, her averment in answer 3 (as amended during the debate before the sheriff) that the only agreement that existed between the parties regarding the title to the property was that this would be transferred into their joint names on marriage. I have to confess that I found counsel's submissions on this point somewhat hard to follow. But it is important to notice that these two supposedly alternative versions of events are relevant only to the question whether or not there was a factor present in the circumstances of this case which made the defender's enrichment at the expense of the pursuer unjust. This of course begs the question whether there was any such enrichment in the first place and the defender's primary position is that there was not. Thus in answer 2 she denies that the pursuer made any contribution to the purchase price of the house at Duffus, that he allocated a great deal of his time and private finances to the improvement of the property and that he financed various works carried out by builders, joiners, electricians and plumbers. She denies also that his redundancy payment was spent on re- development of the property. There are denials to the same general effect also in answers 3 and 4. In the face of these I do not see how there can be any question of sustaining the pursuer's first plea-in-law and restricting proof to the issue of quantum. This, it should be emphasised, was all that counsel asked me to do. He did not, for example, submit that certain averments in the defences should be excluded from probation and the remainder allowed to go to proof which is what might have been expected had there been any substance in his submissions based on the "weaker alternative" rule. [32] On the whole matter I am persuaded that the sheriff reached the right conclusion and I have therefore refused the appeal. [33] It was agreed that the question of the expenses of the appeal should be reserved for a further hearing.