Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

 

A73/09

 

 

JUDGMENT   in causa   ESTHER CAMERON, residing at 29 Camperdown Road, Aberdeen, AB20 4EU.   PURSUER   against   STUART DOUGLAS LEAL, residing at 17 Kittybrewster Square, Aberdeen.   DEFENDER   ______________________

 

 

Act: Stolt

Alt: McKay

 

 

 

 

 

ABERDEEN, 18 May, 2010.

 

The Sheriff, having resumed consideration of the cause,

 

FINDS IN FACT:

1. The pursuer resides at 29 Camperdown Road, Aberdeen.

 

2. The defender resides at 17 Kittybrewster Square, Aberdeen.

 

3. The parties cohabited at 52 Tradlin Circle, Blackburn, Aberdeenshire, a jointly owned property, until February, 2008 when the pursuer left and moved to her father's home. The defender continued to reside at the said address until it was sold on 1 July, 2009.

 

4. In July, 2005 the defender, having consumed alcohol, crashed the pursuer's car. The car was a write-off. The insurers of the car indicated that in these circumstances they would not reimburse the pursuer for the loss. The pursuer therefore made no claim with her insurers.

 

5. The parties discussed the options available and agreed that the lender, which had advanced the purchase price of the said car, should be repaid by the parties taking out a joint loan secured against their property at 52 Tradlin Circle. This was done.

 

6. Both parties paid their respective salaries into a joint bank account and the said loan was repaid each month out of the said account.

 

7. Following the parties' separation in February, 2008 the parties' joint bank account was closed. The parties agreed that the defender would continue to pay both the mortgage on 52 Tradlin Circle and the joint loan secured thereon, until the said property was sold. It was further agreed that the pursuer would not seek maintenance for the parties' child while the said property remained unsold.

 

8. The property at 52 Tradlin Circle was sold on 1 July, 2009 and the outstanding balance of the said joint loan was paid out of the proceeds of the sale of the said property.

 

9. During the parties' cohabitation the pursuer purchased a B.M.W. X5 motor car which was financed with a loan which was repaid each month from the parties' said joint bank account.

 

10. After the parties separated in February, 2008, and the parties' said joint bank account had been closed, the pursuer was unable to afford to maintain the monthly repayments for the B.M.W. X5 motor car from her own earnings alone.

 

11. Accordingly, in or about March, 2008, she returned the said vehicle thereby attracting a penalty of £8,000. The pursuer paid the said sum with money she obtained from her father. She has not repaid any of the said sum to her father.

 

 

 

FINDS IN FACT AND IN LAW:

It not having been established that the defender has derived any economic advantage from contributions by the pursuer the defender is entitled to be absolved from the crave of the Initial Writ.

 

 

THEREFORE; SUSTAINS the defender's first and second pleas-in-law; Quoad ultra REPELS the pursuer's pleas-in-law; GRANTS decree of absolvitor; RESERVES meantime the question of expenses; APPOINTS parties to be heard thereon and ASSIGNS 21^st June 2010 at 9.30 am within the Sheriff Court House, Castle Street, Aberdeen as a diet of hearing thereon.

 

 

 

 

NOTE

[1] In this action the pursuer, who until February, 2008 cohabited with the defender, seeks an order in terms of Section 28(2)(a) of the Family Law (Scotland) Act 2006 for payment by the defender of a capital sum of £16,500.

 

[2] The sum sought comprises two elements, firstly, £12,500 being half the amount of a joint loan taken out by the parties during their cohabitation and secondly, £4,000 being half the amount of a penalty incurred on the return by the pursuer of a car bought by her during the parties' cohabitation.

 

[3] The said joint loan was taken out as a result of the defender writing-off the pursuer's car in a crash after he had been drinking and the insurers declining to reimburse the pursuer for the loss.

 

[4] The said penalty was incurred after the parties' separation as a result of the pursuer returning a car which she could not afford to pay for out of her earnings alone.

 

[5] The pursuer and her father gave evidence. The pursuer was not an impressive witness and I considered her recollection of events to be unreliable. Initially she was unsure if the car written-off by the defender was her vehicle or jointly owned by the parties. Nor was she sure who the registered keeper was. Her father believed the said car was jointly owned but accepted that he had no direct knowledge.

 

[6] The defender gave evidence. I found him to be a credible and reliable witness who gave evidence that although it had been a joint decision to purchase the car that he had written-off it was the pursuer's car and the finance agreement had been in her name although monthly payments for the car were made from the parties' joint bank account. I accepted the evidence of the defender on this matter hence the finding that the car written-off by the defender was the pursuer's car.

 

[7] Following the parties' separation in February, 2008 the parties' joint account was closed but the parties agreed that in exchange for the defender continuing to pay the mortgage on the property at 52 Tradlin Circle, and the joint loan relating to the written-off car, out of his bank account, until the said house was sold, he would not be asked to pay any aliment for the parties' child. The defender paid the whole of the monthly mortgage and joint loan repayments from his earnings until 1 July, 2009 when the said house was sold.

 

[8] The outstanding mortgage and balance on the said joint loan account were paid in full out of the free proceeds of sale of the parties' property at 52 Tradlin Circle,.

 

[9] In considering whether to make an order in terms of Section 28(2)(a) of the Act the court must have regard to whether, and to what extent, the defender has derived economic advantage from contributions made by the pursuer and whether, and to what extent, the pursuer has suffered economic disadvantage in the interests of the defender and apply set-off to any economic advantage derived and any disadvantage suffered by the respective parties.

 

[10] The total destruction of the pursuer's vehicle did not result in any economic advantage to the defender. Although the pursuer suffered an economic disadvantage when the insurers declined to re-imburse her for her loss the pursuer did not derive any corresponding economic advantage. Both parties suffered an economic loss albeit caused by one of them. In these circumstances there is no basis for the application of set-off. What is sought by the pursuer is compensation from the defender for a wrong on his part which resulted in loss to her. In my opinion Section 28(2)(a) of the Act does not provide a mechanism for so doing under the guise of a claim for a capital sum.

 

[11] In any event, the parties agreed that the loss caused by the destruction of the pursuer's car would be borne jointly. The parties took out a joint loan and repaid jointly. It was never suggested in evidence that the agreement was unfair or entered into under duress. Agreements made by parties for love, favour or affection should not be struck down by the court, sometimes years later, because the parties have subsequently fallen out and their attitude to each other has changed.

 

[12] In addition, Section 28 of the Act requires that the court have regard to the extent of any economic disadvantage suffered and any economic advantage derived by the parties and apply set-off thereto. Until the parties separated the loan was repaid out of the parties' joint bank account. No evidence was led as to each parties' contribution to the said account, or the term of the said loan, or the amount of the monthly repayments. More significantly, the evidence established that for the period between the closing of the parties' joint bank account, and the sale of the parties' property at 52 Tradlin Circle, some 17 months, the defender paid the whole of the monthly loan repayments. No evidence was led as to the outstanding balance, if any, due under the loan at the time the parties' house was sold. Accordingly, if there had been any economic disadvantage suffered by the pursuer, the extent of any disadvantage could not be assessed.

 

[13] With regard to the second element of the pursuer's claim, namely the sum of £4,000 being half of the penalty incurred by the pursuer when she returned her car. The defender derived no economic advantage from the pursuer's decision to return the said car and in any event the decision was made by the pursuer, and the penalty incurred, after the parties had ceased to cohabit. Further, the funds to pay the penalty were obtained from the pursuer's father and no repayment has been made.

 

[14] Accordingly, I was not persuaded that an order in terms of Section 28(2)(a) of the Family Law (Scotland) Act 2006 could be made by the court.