A woman who claimed she had an “absolute right” to division and sale of a property and that the “equitable jurisdiction” of the court required that it give consideration to her claim has had her appeal refused.

AM Family Law Group member Frank Burr, pictured below, recently appeared before the Sheriff Principal Craig Scott QC to successfully argue against an appeal by Carol Sweeney against a sheriff’s decision to dismiss her counterclaim as incompetent, in an action by Gordon Collins concerning the home formerly shared by the parties.

Ms Sweeney asked the court to grant warrant for sale to her of Mr Collins’ one half pro-indiviso share in the subjects at the price of £42,500, less one half of the mortgage redemption figure to be determined by the court, the price to be satisfied in part by a discharge of the capital sum payable by him to her.

The defender’s second plea in law was to the effect that having made “disproportionate financial contribution to the essential maintenance and upkeep of the commonly owned property”, decree should be granted as craved.

Counsel for the defender referred to the case of Upper Crathes Fishings Ltd v Bailey’s Executors 1991 SLT 747. Under reference to passages from Lord Hope’s opinion in Upper Crathes, counsel for the defender sought to identify a two-stage process by which the court was bound to give consideration to an action of division and sale.

The first consideration involved recognition that the right to raise and pursue such an action is absolute. However, a second consideration according to counsel for the defender involved the full equitable jurisdiction of the court in working out the remedy.

It was argued on appeal that the sheriff had materially erred in law in concluding that what was an absolute right to sell, outweighed the court’s “full equitable jurisdiction to give effect to a fair means of disposal”.

It was submitted that equity did apply when it came to how the sale of the subjects should be effected. In that regard, counsel argued that the court had “full equitable jurisdiction”. The defender was seeking an order from the court to the effect that a sale of the subjects to her should take place and that at a fair price.

Counsel for the pursuer invited the court to refuse the appeal and to adhere to the sheriff’s interlocutor. He highlighted a difficulty with the defender’s explicit acceptance that the right of a co-proprietor to raise and pursue an action of division and sale was absolute.

Turning to the case of Upper Crathes, counsel for the pursuer stressed that the court’s decision had expressly excluded any equitable defence to an action of division and sale. Were the court to tolerate the approach taken by the defender in the present action such a decision would run contrary to that express exclusion.

However, the Sheriff Principal held that the argument presented on behalf of the defender was “ill conceived”.

Giving his judgment, Sheriff Principal Scott said: “Counsel for the defender placed much reliance upon a particular characterisation of Lord Hope’s remarks in the Upper Crathes case. However, properly analysed, any reference therein to the full equitable jurisdiction of the court being used ‘in the working out of the remedy’ does not avail the defender in the present case.”

He said it was clear that “the working out of the remedy” involved the selection of the remedy as between a division of the subjects and their sale and that equity could be a good defence to a division considered in the context of an action demanding division or sale.

Sheriff Principal Scott added: “In the circumstances of the present action, the remedies craved by the respective parties are contested. I agree with the submission of counsel for the pursuer that, absent agreement or implied consent, it is incompetent for the court to make an order for the sale of the pursuer’s one-half pro indiviso share to the defender.

“Such a conclusion is justified not merely by the absence of authority supporting the defender’s argument and contrary authority, particularly in the form of the Upper Crathes case. It can be securely arrived at by an analysis of the fundamental principles involved here.

“When it comes to division and sale, a co-proprietor’s right to raise such an action is absolute. It cannot be qualified by consideration of equity. The remedy itself is straightforward. Whereas in this case division does not come into play, it follows that a sale of the subjects must take place and the proceeds of that sale require to be divided.”