April 19, 2024
Full articleA recent judgement from Sheriff Philip Mann at Aberdeen Sheriff Court has caught our attention here at the Gilson Gray debt recovery department.
In Santander Consumer (UK) Plc v Alan Creighton [2019] SC ABE 38 Santander raised a sheriff court action on the back of a terminated conditional sale agreement concerning the sale of a motor vehicle. The agreement stipulated that upon termination Santander could recover the vehicle plus the full balance due for payment from Mr Creighton. The balance due was to be calculated “immediately” upon termination, less the net proceeds from the sale of the vehicle, after deduction of the costs incurred recovering it.
The action was undefended. Santander craved the court to grant decree for both payment of the balance due and delivery of the vehicle.
The sheriff took issue with granting decree for both simultaneously. In his opinion the crave for payment was premature. Given no steps could be taken to recover the vehicle without a court order, the amounts due could not be calculated “immediately” upon termination until there was recovery and sale of the vehicle, or at least an attempt to bring this about. Thus “immediately” must be read as meaning “once the sum due has been ascertained” upon recovery and sale.
In the sheriff’s view the proper course of action would be to keep the crave for payment on hold until Santander had attempted recovery and sale. They could then come back to court and ask for payment with an established net sale figure or an assurance that the vehicle could not be recovered. Only then would it be appropriate to grant their crave for payment.
In our opinion the sheriff was bang-on with his judgement. This is how we always deal with our vehicle recovery cases and having raised multitudes of these types of actions, it is good to have the sheriff affirm that we have been going about it the right way.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.
