SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK
Judgement
Of
Sheriff Philip Mann
in causa
Shetland Leasing & Property Developments Limited
a company incorporated in Scotland under the Companies Act (No SC071854) and having its Registered Office at 22-24 North Road, Lerwick, Shetland , ZE1 0NQ
Pursuers
Against
Malcolm Alexander Younger
Defender
Act: McGregor, Advocate
Alt; Edward, Advocate
Lerwick 6 January 2014
The sheriff, having resumed consideration of the cause, sustains the pursuers' second plea in law; sustains the pursuers' first plea in law in so far as relating to their first and second craves; repels the defender's pleas in law; In consequence thereof:
(1) Finds and declares that the defender having allowed payments in respect of rent to remain unpaid for more than twenty eight days has thereby in terms of the lease of the premises known as and forming ALL and WHOLE the detached self contained office and television recording studio premises situated on the ground floor and first floors at Number Two, North Ness Industrial Estate, Lerwick, Shetland being the whole subjects described in and disponed by the Disposition by Highlands and Islands Enterprise in favour of the pursuers dated Twenty fifth April 2005 and subsequent date; together with (One) the fixtures and fittings therein and thereon and (Two) all parking spaces allocated to the whole building, said lease being dated Twenty sixth and Twenty ninth both days of April 2005 and registered in the Books of Council and Session on Thirty first March 2006, incurred an irritancy of said lease and that said lease with all that has followed thereon is at an end and the parties thereto are no longer bound by it and that the pursuers are entitled to enter and enjoy possession of the subjects and dispose thereof at pleasure;
(2) Ordains the defender summarily to flit and remove himself or sub-tenants and dependants with his or their goods and gear forth and from the subjects and to leave same void and redd to the end that the pursuers may enter thereto and peaceably possess and enjoy same and that under pain of summary ejection;
Reserves meantime the question of expenses and appoints parties to be heard thereon within the Sheriff Court, Sheriff Court House, King Erik Street, Lerwick on 21 January 2014 at 10:00am.
Sheriff Philip Mann
Note/
Note
1. Introduction
1.1 This action concerns the lease of commercial premises in respect of which the pursuers are the landlords and the defender is the tenant in terms of a commercial lease in fairly standard terms.
1.2 The pursuers claim that the defender was in breach of clause 8 of the lease, being an irritancy clause, by being more than twenty eight days in arrears with payment of the rent. In consequence thereof the pursuers, through their solicitors, served a notice (hereinafter referred to as "the section 4 notice") on the defender pursuant to section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
1.3 Section 4 of the 1985 Act is in the following terms:
4.- Irritancy clauses etc. relating to monetary breaches of lease.
(1) A landlord shall not, for the purpose of treating a lease as terminated or terminating it, be entitled to rely-
(a) on a provision in the lease which purports to terminate it, or to enable him to terminate it, in the event of a failure of the tenant to pay rent, or to make any other payment, on or before the due date therefor or such later date or within such period as may be provided for in the lease; or
(b) on the fact that such a failure is, or is deemed by a provision of the lease to be, a material breach of contract, unless subsection (2) or (5) below applies.
(2) This subsection applies if -
(a) the landlord has, at any time after the payment of rent or other payment mentioned in subsection (1) above has become due, served a notice on the tenant -
(i) requiring the tenant to make payment of the sum which he has failed to pay together with any interest thereon in terms of the lease within the period specified in the notice; and
(ii) stating that, if the tenant does not comply with the requirement mentioned in sub-paragraph (i) above, the lease may be terminated; and
(b) the tenant has not complied with that requirement.
(3) The period to be specified in any such notice shall be not less than-
(a) a period of 14 days immediately following the service of the notice; or
(b) if any period remaining between the service of the notice and the expiry of any time provided for in the lease or otherwise for the late payment of the sum which the tenant has failed to pay is greater than 14 days, that greater period.
(4) Any notice served under subsection (2) above shall be sent by recorded delivery and shall be sufficiently served if it is sent to the tenant's last business or residential address in the United Kingdom known to the landlord or to the last address in the United Kingdom provided to the landlord by the tenant for the purpose of such service.
(5) This subsection applies if the tenant does not have an address in the United Kingdom known to the landlord and has not provided an address in the United Kingdom to the landlord for the purpose of service.
1.4 The terms of the section 4 notice were as follows:
"We act on behalf of Shetland Leasing and Property Developments Ltd, your Landlord of the above subjects in terms of a lease dated 26th and 29th April 2005.
You have failed to pay:-
1. Rent as undernoted.
2. Interest at the rate of 3% per annum over the base rate charged by Clydesdale Bank Public Limited Company from time to time in relation to the arrears of rent in terms of the lease.
On behalf of our client, we hereby give you notice in terms of the lease that you are required to pay the sum of £10,167.64 within fourteen days following service of this notice. If you fail to comply with the terms of this notice, served under section 4 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, the said lease may be terminated at the instance of our client.
Please arrange to pay the said sum of £10,167.64 directly into our client's bank account, details as undernoted, within fourteen days. Once payment has been received we shall notify you of the interest then due.
Yours faithfully,
Note referred to:-
Rent outstanding and due for October 2012 - February 2013 (inclusive) £10,167.64
[Bank Account Details]"
1.5 The defender not having complied with that notice, the pursuers, through their solicitors, served a further notice on the defender (hereinafter referred to as "the termination notice") in the following terms:-
"We refer to our Notice sent to you by recorded delivery post on 22 February 2013 on behalf of our client Shetland Leasing and Property Developments Limited whereby we called upon you to make payment of rent detailed therein due by you in terms of the lease between our client and you.
As you have failed to make payment in terms of the said Notice, on behalf of our client we hereby terminate the said lease.
Please arrange for the premises to be vacated immediately and the keys returned to our client."
1.6 The defenders have not vacated the premises. Through their solicitor they sent a letter to the pursuers' solicitors dated 22 March 2013, number 6/1/6 of process, in the following terms:-
"I refer to your letter dated 15 March addressed to Mr Younger terminating the lease of the above subjects and to my subsequent telephone conversation with your Mr Donaldson.
As I explained my client informs me that he has been experiencing difficulties in obtaining payments from creditors, with the consequence that he has experienced cash flow difficulties. This has resulted in the regrettable failure to make timeous payments of rent with respect to the above subjects.
My client is now in a position to pay the sum of £10,167.64, being the sum specified in your letter addressed to him of 22 February 2013. These funds have been remitted to my client account on the basis that they may be paid to you in respect of the arrears of rent if your clients will agree to grant a short term lease for a period of six months for the above premises. My client has suggested a term of six months so that your clients can be satisfied that he is able to fulfil the tenant's obligations, assuming that a lease on the same terms as the present arrangements can be entered into. At the end of that period he would like to explore the possibility of acquiring the subjects on the terms which have been discussed recently with Mr Jeff Goddard.
I should be obliged if you would kindly take your clients' instructions and look forward to hearing from you further in due course.
This letter is written entirely without prejudice to my client's whole rights and pleas and may not be founded or referred to in any proceedings, save with the express consent of my client. Any statement made herein is made for the purpose of negotiation only and is not to be construed as any admission of fact."
1.7 The pursuers not having responded to that letter and the defender not having vacated the subjects of the lease the pursuers raised this action seeking declarator that the lease is at an end and summary ejection of the defender.
1.8 The action came before me on 12 November 2013 as a debate on the preliminary pleas of both parties. The defender's preliminary plea, number 1, is in the following terms:-
"1. The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed."
The pursuers' preliminary pleas, numbers 2 and 3, are in the following terms:-
"2. The Defender's averments being irrelevant et separatim lacking in specification should be repelled, and decree granted as craved.
3. The Defender's averments being irrelevant et separatim lacking in specification, they should not be remitted to probation"
1.9 Both parties had lodged rule 22 notes in support of their preliminary pleas. They are numbers 9 of process for the pursuers and 11 of process for the defender, respectively. At the outset of the debate on 12 November 2013 Mr Edward for the defender sought leave to lodge a supplementary rule 22 note raising a further point relating to the validity of the section 4 notice. This was objected to by Mr McGregor on behalf of the pursuers on two grounds. Firstly, it came too late, not even having been intimated to the pursuers in advance. Secondly, the new point was not one taken in the pleadings. In reply, Mr Edward explained that the defender had only recently changed agents. Mr Edward had requested those agents to intimate the supplementary note to the pursuers' agents over the weekend but due to those agents being in the process of moving office they had not done so. He further submitted that the point made in the supplementary note related to the validity of the section 4 notice and that it was clear from the defences that that was a matter that was part of the substantive defence. Additionally, the question of the validity of that notice was foreshadowed in the rule 22 note that had been timeously lodged. I took the view that Mr Edward had not shown cause in terms of ordinary cause rule 22.1(4) for the introduction of the new matter and I refused to receive the supplementary note.
2. The Debate
2.1 The debate essentially centred on the validity of the section 4 notice. Mr Edward maintained that the notice was invalid. That being the case, the pursuers' pleadings were irrelevant because even if all of their averments of fact were proved they would not be entitled to the remedies they sought. He moved for decree of absolvitor, although he had no plea in law to support such a disposal. Mr McGregor maintained that the section 4 notice was valid. The thrust of his submission was that the defences were irrelevant because they did not disclose an offer to prove that the arrears of rent had been paid in response to the section 4 notice. The defence to the action could not succeed in the absence of proof that the arrears had been paid. Accordingly, even if all of the defender's averments of fact were proved the defence would still fail. He moved for decree as craved. Mr McGregor moved, in the alternative, that I should exclude certain of the defender's averments from probation. If that were done there would be no substance to the defence and, again, it would be appropriate to grant decree as craved.
2.2 Mr Edward maintained that the section 4 notice did not adequately convey to the defender what it was that he had to do in order to comply with it. This was because there was no adequate specification of the rent that was said to be in arrears. The rent was said to relate to a period of five months but the actual figure did not equate to five months' rent, although it was more than four months' rent. It was, therefore, unclear which months had been paid in part and which had not. It would have been a simple matter for the figure to have been specified accurately. It was particularly important to have proper and adequate specification because the fourteen day timescale for payment was tight and afforded little time for the defender to investigate the position and then arrange payment.
2.3 Mr Edward suggested that it might be argued against the defender that he ought to know the extent to which the rent was in arrears. This was the "reasonable recipient" test applied in the case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] A.C. 749. His contention was that this test did not apply in this case but even if it did there was no reasonable specification of how the sum was made up. Mr Edward referred to the defender's productions numbers 6/1/1 to 6/1/5 of process incorporated into the defender's pleadings brevitatis causa. These were a series of statements issued to the defender by the pursuers at the defender's request during the currency of the action. The statements covered the period from October 2012 to February 2013. They disclosed that as at 1 October 2012 the arrears of rent stood at £1,050.68, rising to £10,167.64 as at 1 February 2013. The defender averred that on various dates, the first being 31 October 2012 and the last being 12 February 2013, the defender made payments to the pursuers totalling £8,200.68. This was admitted by the pursuers. It could be seen that the amount specified in the section 4 notice was inaccurate. The defender had not had the statements at the time of receipt of the section 4 notice but even if he had had them he would have been unable to reconcile the figure claimed in the notice.
2.4 Mr Edward maintained that the section 4 notice was defective in that it was unclear whether or not the figure of £10,167.64 included interest. Additionally, because it was unclear which months had been paid in full and which had not it was impossible for the defender to calculate the interest due on the arrears.
2.5 Mr Edward referred to the case of Ethel Austin Properties Holdings Limited v D & A Factors (Dundee) Limited unreported, Kirkcaldy Sheriff Court, 21 June 2005. In that case the sheriff accepted the defender's assertion that the "reasonable recipient" test adopted in Mannai should be rejected. The defender in the Ethel Austin case had pointed out that Lord Steyn in Mannai had stated that that case was
"not a case of a contractual right to determine which prescribes as an indispensible condition for its effective exercise that the notice must contain specific information."
The fact that the section 4 notice required to contain indispensible information was sufficient to distinguish the Mannai case. Mr Edward maintained that the same distinction fell to be made in this case. The sheriff in the Ethel Austin case had pointed out that the question which arose in Mannai was whether a notice relating to a break clause in a lease adequately conveyed the requisite message from a tenant to a landlord. Mr Edward suggested that it was analogous to say that if the section 4 notice in this case contained no specification of the sum that the defender had to pay it did not adequately convey to him the rents that were said to be unpaid. Mr Edward maintained that it was, simply, not acceptable to state a lump sum without specifying how it was made up and to threaten irritancy for non-payment.
2.6 Mr Edward then referred to the case of Tawne Overseas Holdings Limited v The Firm of Newmiln Farms and others 2008 Hous. L.R. 18 and, in particular, paragraphs 7 and 9 to 12 thereof. In that case, too, the "reasonable recipient" test applied in Mannai was rejected. The Tawne case involved the question whether the section 4 notice had correctly specified the period of fourteen days and Lord Malcolm held that there was no good reason to hold that the defenders must have understood the notice in any way other than the ordinary meaning of the words used. The issue debated in Tawne was whether or not the section 4 notice was in proper form and if not, did that matter. Lord Malcolm concluded that it did matter if the notice was not in proper form, having been referred to the Scottish Law Commission's Discussion paper on Irritancy in Leases of Land, No.117 (October 2001), and in particular to paragraph 3.16 thereof which said:
"In relation to a failure to pay rent or to make payment of any other kind the landlord must comply with the statutory notice procedure contained in section 4 before he is entitled to rely on an irritancy clause in the lease."
And to a passage in the speech of Lord Jauncey of Tullychettle in Mannai where his Lordship said:
"Notices terminating a tenancy are technical documents because they are effective without the consent of the receiver. It is therefore essential that they conform to the statutory or contractual provisions under which they are given"
Under reference to paragraph 11 of Lord Malcolm's opinion in Tawne Mr Edward submitted that the fact that a tenant was in arrears had no bearing on the validity of a section 4 notice.
2.7 Mr Edward also referred to the case of Kodak Processing Companies Limited v Shoredale Limited 2010 S.C. 113 to illustrate the necessity for strict compliance with the statutory requirements of section 4. In that case the notice had been served by sheriff officers whereas section 4 specified service by recorded delivery, "recorded delivery" having been held by the court to mean recorded delivery through the Royal Mail service. The notice in that case was held to be invalid even though it could not be maintained that there was prejudice to the defender and even though at the time of service there had been a postal strike making recorded delivery impossible.
2.8 Mr McGregor suggested that the parties were at one in respect of the applicable law. The question to be resolved was how the law should be applied to determine whether or not the section 4 notice was valid. He maintained that the notice was valid and that termination of the lease in reliance upon it was also valid.
2.9 Mr McGregor submitted that there were six propositions that could be derived from the cases in which section 4 had been considered:
1. Compliance with the requirements set out in the section is mandatory. This was held to be the case by Lord Malcolm at paragraph 12 of his judgement in Tawne. The notice is either valid or invalid depending on whether or not there has been compliance. There is no prescription as to the form that the notice must take. This was the view of Lord Morton of Shuna at page 362 in the Outer House case CIN Properties v Dollar Land (Cumbernauld) Ltd 1990. S.C. 351, where he said:
"In my opinion sec. 4(2) of the 1985 Act lays down minimum requirements of an adequate notice and does not prescribe any form which the notice should take or confine the notice to contain only the requirement to pay and the statement that if payment is not made within the time provided 'the lease may be terminated'"
2. The notice must specify the period from which the rent arrears arise. This was held by Sheriff Principal Stephen in the case of Scott v Muir 2012.S.L.T. 179 at paragraph 43 of her judgement. It was sufficient merely that the period from which the arrears arose be specified.
3. There is no requirement for any detailed breakdown of the arrears or that the sum specified be accurate. There was no suggestion by Sheriff Principal Stephen in Scott v Muir that there should be any form of breakdown. In Bellevue Cash and Carry v Singh 1996 GWD 220 Sheriff Lothian rejected the defender's contention that it was insufficient to found on a demand for payment which specified an amount of money outstanding which was inaccurate, holding that accuracy at the time of receipt of the notice by the tenant was not fundamental provided that the tenant was not misled.
4. If interest is to be claimed it must be capable of calculation. This was confirmed by Sheriff Principal Stephen in Scott v Muir at paragraph 45 of her judgement where she said:
"I am satisfied that if the matter of specification of arrears of rent is taken along with the issue of interest then it follows that proper specification must be required."
In this case, however, the question of interest did not arise as payment of interest was not demanded as a requirement to avoid irritancy.
5. There is no absolute requirement for the notice to demand payment of interest. This was because it might be difficult to calculate the interest. This was the position In Whitbread Group PLC v Goldapple Ltd 2005 S.L.T. 281. In that case Lord Drummond Young in the Outer House at paragraphs 33 and 34 of his judgement made the point that the obligation to pay interest on unpaid rent could not be treated as a mere addition to the failure to pay rent. It was an obligation in its own right which fell to be performed within a reasonable time after the arrears of rent were paid. In Whitbread the section 4 notice included a demand for interest. Lord Drummond Young held that the landlord could not rely on non-payment of the interest demanded because as at the date of service of the notice payment of interest was not exigible. In addition, in that case, there were complications arising from disputed payments of rent that made calculation of the interest impossible until the dispute was resolved.
6. The notice must inform the tenant of what he must do to avoid irritancy of the lease. This was the basic purpose of the statutory provision and was the critical element of the section 4 notice. The notice in this case was not ambiguous. It gave a clear indication to the defender of what he required to do.
2.10 Mr McGregor pointed out that the irritancy clause in the lease did not provide a notice period and that therefore it was the notice period of fourteen days specified in section 4 that applied. Section 4 required that the notice be served by recorded delivery. The section 4 notice complied with these two requirements. There was nothing in the section 4 notice that was at variance with any of the six propositions that he had identified.
2.11 Mr McGregor urged me to sustain the pursuers' preliminary plea number 2 and repel the defences with the consequence that decree should be granted as craved. Alternatively and in reliance upon the pursuers' preliminary plea number 3, Mr McGregor urged me to find various passages in the defences to be irrelevant and to exclude them from probation. This included an attack on the defender's averments about the pursuers having granted an indulgence in respect of earlier arrears of rent. Mr McGregor's assertion was that it did not follow that because an indulgence had been granted in respect of earlier arrears the pursuers were debarred from founding on later arrears to enforce their right to irritate the lease. As will become apparent, I have come to the view that the pursuers' preliminary plea number two should be sustained and it is therefore not necessary for me to rehearse the detail of the submissions of either counsel anent the pursuers' preliminary plea number 3. I hope that I do not thereby do a dis-service to them.
3. Discussion and Decision
3.1 I prefer Mr McGregor's submissions on the question of validity of the section 4 notice. The purpose of the notice is to give a clear and unambiguous intimation to the tenant that there are arrears of rent which require to be paid within a specified period, failing which the landlord may rely on the irritancy clause in the lease to bring it to an end.
3.2 The notice served by the pursuers, read as a whole, clearly demands payment of arrears of rent only. It clearly sets out what the arrears of rent are and demands only that that sum be paid. It does not demand payment of interest although it refers to a failure to pay such interest. Section 4 specifies that the landlord must demand payment of:
"the sum which he has failed to pay together with any interest thereon in terms of the lease (emphasis supplied)"
Clause 6.1.7 of the lease makes the tenant liable to pay interest on unpaid rent from the due date for payment "until payment is actually made" (emphasis supplied) by the tenant. It follows that until the rent is paid the interest cannot be calculated. As Lord Drummond Young did in the case of Whitbread I have concluded that the obligation as regards interest in this case is to pay it within a reasonable period after payment of the rent. It is an obligation in its own right. In this case, as in Whitbread, the obligation was not exigible as at the date of service of the section 4 notice. It follows that it was not necessary, or appropriate, that the notice demanded payment of the interest. The validity of the notice cannot be attacked on that basis.
3.3 The validity of the notice cannot be attacked on the basis that it includes a matter, namely a reference to interest, which goes beyond what is required by section 4. In this respect I agree with Lord Morton of Shuna in the CIN case. In fact, the pursuers' assertion that the defender had failed to pay interest was not sustainable because there was no obligation on the defender to pay interest at that point. But that does not make the section 4 notice invalid, in my view. The defender ought to have known, just as the pursuers ought to have known, by reference to the lease that interest was not then exigible. The defender could not have been misled by this erroneous assertion.
3.4 Had interest been exigible at the time of issue of the section 4 notice and had payment of such been demanded I would have examined more closely the defender's assertion that the notice was invalid for want of adequate specification of the arrears of rent to enable interest to be calculated accurately. In Scott v Muir the Sheriff Principal made it clear at paragraph 45 of her judgement that to calculate the interest the tenant requires to know the date from which interest should be calculated. Because interest on a specific sum can only be calculated accurately by reference to a specific date it follows, I think, that the defender would need to know which monthly rental payments had been partly paid and which had not. However, payment of interest having, correctly, not been demanded, the validity of the section 4 notice cannot be attacked on the basis that there is a lack of precision in the statement of arrears making it impossible to calculate the amount of the interest due. The case of Scott v Muir can be distinguished on this point on the basis that the section 4 notice in that case did demand payment of interest.
3.5 In my view, the defender could not have been in any doubt that he was required to pay arrears of rent within a specified period under pain of irritancy. That is what the notice clearly says. It cannot be construed in any other way. There is no need to consider any "reasonable recipient test" as was done in the case of Mannai. All that is required, to borrow from Lord Goff of Chieveley in his dissenting speech in that case referred to by both counsel, is to consider whether or not the pursuers have used the "right key which alone is capable of turning the lock". In my view they have.
3.6 Part of the defence in this case involves an assertion that the arrears of rent are overstated in the section 4 notice. That is not a defence that is open to a tenant who has received such a notice and has done nothing in response to it. It may well be the case that the sum claimed in such a notice is inaccurate. That could be so for a variety of reasons. But in this case we are dealing with a commercial lease. The defender is a man of business. In running his business he must maintain records. He ought to know whether or not he is actually in arrears with his rent. He ought to be able to calculate from his records the extent to which he is in arrears with his rent. But all that the defender avers is that he was aware that he was in arrears of rent to some extent but was unaware of the exact amount. If it is truly the defender's position that the section 4 notice overstated the arrears he could, and should, have responded to the notice by asserting a lower amount of arrears than was claimed and by paying that lower amount. Had he done so then I would have been of the view that for the pursuers to obtain the remedy that they seek they would have been under obligation to establish by proof that the actual arrears exceeded the sum admitted and paid by the defender. But the defender does not seek to defend the action on that basis.
3.7 In any event, the defender makes averments which do not candidly set out his position as regards the arrears. He avers that there were earlier arrears which he was to be allowed to repay by instalments added to his monthly rental payments. He does not specify how such an arrangement was come to nor does he aver that he adhered to such arrangement. He does not aver, in terms, that any such earlier arrears were settled. Yet, he seeks to prove that as at a later date there were no historic arrears. In consequence of that he avers that certain payments made by him should have been applied not so as to reduce historic arrears but so as to reduce the amount of arrears claimed in the section 4 notice. But this is contradicted by the terms of the letter 6/1/6 of process which are incorporated into his pleadings. I note, in passing, the terms of the final paragraph of the letter and the reference to "without prejudice". Any effect which that final paragraph may have had to prevent reference to, comment on and reliance upon the terms of the letter is negated by the fact that the defender has chosen to incorporate the terms of the letter into his pleadings. If the letter is available to be founded upon by the defender then so too is it available to be founded upon by the pursuers. The letter acknowledged that arrears of rent remained unpaid and that the defender was willing to pay the sum specified in the section 4 notice if the pursuers would grant him a new lease.
3.8 The terms of the letter 6/1/6 of process and the fact that the defender seeks the grant of a new lease suggest that he accepts that the pursuers have properly brought the lease to an end on account of a failure to settle the arrears claimed as required by the section 4 notice. He does not offer to prove that the arrears were less than were claimed and that he asserted that to the pursuers and settled that lesser amount in response to the notice. That, in my view, makes the defender's position untenable.
3.9 All that the pursuers need do to prevail in this action is to prove, as they offer to do, that they served a valid notice in terms of section 4 of the 1985 Act and that the defender failed to comply with it. The defender admits that a notice was served. He takes no issue with the mode of service or the time limit specified. He admits that there were rent arrears and that he made no payment of or towards his rent arrears following receipt of the notice. The only remaining question is, "was the notice valid?" That question can be answered without proof simply by construing the terms of the notice. For all of the reasons that I have already discussed I am satisfied that the notice is valid. I am satisfied that the defence will fail no matter which of his averments the defender is able to prove. Accordingly, the defences are irrelevant. They fall to be repelled. I am satisfied that it is appropriate to grant decree in favour of the pursuers in terms of their craves one and two. There is nothing in law or in equity that compels me to do otherwise.
3.10 However, I am not prepared to allow immediate extract of the decree. I think that that would be more appropriate in the context of an undefended action.
4. Expenses
4.1 I was not addressed on the question of expenses. I have fixed a hearing in that regard.