From:
s38(1)(b)
Sent: 24 January 2019 09:24
To:
Cc:

s38(1)(b)
s38(1)(b)

Subject: RE: North Banchory Co Limited - Release of Standard Security.
Good morning

s38(1)(b)

Many thanks for confirming that the standard security can be discharged.
I have spoken tos38(1)(b)this morning, and he will ask our solicitors to provide the discharge for signing.
Kind regards

s38(1)(b)

Finance Director
s38(1)(b)

Group Head Office: Banchory Business Centre, Burn O’Bennie
Road, Banchory, Aberdeenshire, AB31 5ZU
Group Companies: North Banchory Company Ltd, Leys Estate,
HoBESCo Ltd, Inchmarlo Land Company Ltd

s38(1)(b)
From:
Sent: 24 January 2019 09:07
To:
Cc:

s38(1)(b)
s38(1)(b)

Subject: RE: North Banchory Co Limited - Release of Standard Security.
Good morning

s38(1)(b)

I can confirm that you have provided evidence that the development was completed during 2017
and SE Legal has confirmed as such the standard security can be discharged as any sums due will
now be prescribed.
Therefore can you please provide a discharge of the security for signing.
I look forward to hearing from you.
Regards.
s38(1)(b)

 From:
Sent: 22 January 2019 18:21
To:
Cc:

s38(1)(b)

s38(1)(b)
s38(1)(b)

Subject: FW: North Banchory Co Limited - Release of Standard Security.
s38(1)(b)

Are you able to come back to us on this matter?
Kind regards

s38(1)(b)

Finance Director
s38(1)(b)

Group Head Office: Banchory Business Centre, Burn O’Bennie
Road, Banchory, Aberdeenshire, AB31 5ZU
Group Companies: North Banchory Company Ltd, Leys Estate,
HoBESCo Ltd, Inchmarlo Land Company Ltd

s38(1)(b)
From:
Sent: 07 January 2019 13:48
To:
s36(2)
Subject: RE: North Banchory Co Limited - Release of Standard Security.

Good afternoon

s38(1)(b)

Thank you very much for your detailed email with attachments.
I’ll now discuss internally and will revert back to you.
Regards.
s38(1)(b)

From:
Sent: 07 January 2019 11:45
To:
Cc:

s38(1)(b)

s38(1)(b)
s38(1)(b)

Subject: RE: North Banchory Co Limited - Release of Standard Security.
Good morning

s38(1)(b)

 The role of the architect in connection with Phase 2 of the development was to apply for and obtain
planning and building warrant consents only.
At the time that these works were being completed the company had engaged Strutt & Parker as
Letting and Property Managers for Banchory Business Centre. Accordingly, the building works in
question were being supervised by
of Strutt & Parker.
s38(1)(b)
The definition of ‘Completion Date’ in the grant offer is “the date on which the Company’s
Consultant certifies that the Building Works are practically complete”. The definition does not
stipulate the form that the certification should take, e.g. statement of practical completion from
architect or acceptance of completion certificate from local authority, etc.
s38(1)(b)
In our case, the Company’s Consultant was
of Strutt & Parker, and the certification
took the form ofs38(1)(b)approving the final account invoice, as attached.
s38(1)(b)
Whilsts38(1)(b)did not date the invoice at the time that
certified that the works were complete by
approving the invoice, this would have been certified shortly after being issued on 27 August 2007
by Banchory Contractors. All of the backup attached to the invoice supports the fact that the works
were completed well ahead of the date that the invoice was raised.

We would also note that:
• as already provided and reattached, the Tenancy Schedule for Banchory Business Centre as
at 31 August 2007 demonstrates that, apart from 2 offices in Wing F3, each of the 8 wings (4
ground floor and 4 first floor) were occupied. If the works had not been completed, the
offices could not have been occupied;
s38(1)(b)
• as previously advised, this Tenancy Schedule was provided to your
on 20
February 2013. This was provided to s38(1)(b) following
of your Legal
s38(1)(b)
Team at that time, accepting in late 2012 that August 2007 was the completion date of the
development to be used in the assessment of any ‘profit sharing’;
• we are in possession of a letter from Ledingham Chalmers dated 27 July 2007, copy
attached, in which it is stated that Scottish Enterprise were in discussions with the company
in respect of the possibility of any clawback in accordance with Clause 6.3 of the grant
offer. It is unlikely that such discussions would have commenced unless Scottish Enterprise
were content that the completion date had been established in accordance with Clause 6.3,
albeit it appears that there was no conclusion reached by these discussions at that time;
• as referred to above, further discussions and dialogue took place between Scottish
Enterprise and the company between November 2012 and early October 2013. These
discussions and dialogue culminated in various financial information being provided to
Scottish Enterprise on 2 October 2013 as requested. The receipt of this information was
s38(1)(b)
acknowledged by
of your Finance Team at that time, on 4 October
2013. s38(1)(b) cknowledged that she was to review the information provided and advised she
would come back to us in November 2013. To this day, well over 5 years later, we have had
no feedback on this, with discussions and dialogue only commencing again in February 2018
instigated by s38(1)(b) looking to progress with a land sale on behalf of the company.
Based on the foregoing, the company’s position remains as set out in our letter dated 5 September
2018, copy attached, in that, in terms of section 6 of the Prescription and Limitation (Scotland) Act
1973, your claim for repayment of the grant prescribed 5 years from the date the obligation to repay
arose i.e. August 2012. You therefore had until August 2017 to protect any claim to repayment by
raising a court action (or other formal action). As Scottish Enterprise failed to do this, any claim has

 now prescribed, and on that basis we ask that Scottish Enterprise grants a discharge of the Standard
Security.
We look forward to receiving confirmation from Scottish Enterprise that a discharge of the Standard
Security will be granted without undue delay as this matter continues to delay development on the
business park over which security is currently held.
s33(1)(b)

This continued delay
s33(1)(b)
from Scottish Enterprise in accepting the position and discharging the security appears contradictory
to one of its own objectives of “Supporting Scottish businesses to achieve their goals”.
Please note this email is written without prejudice to the whole rights and pleas of North Banchory
Company Limited and is not to be founded upon nor referred to in any ensuing process or litigation
without the express written consent of North Banchory Company Limited.
Kind regards

s38(1)(b)

Finance Director
s36(2)

Group Head Office: Banchory Business Centre, Burn O’Bennie
Road, Banchory, Aberdeenshire, AB31 5ZU
Group Companies: North Banchory Company Ltd, Leys Estate,
HoBESCo Ltd, Inchmarlo Land Company Ltd

s38(1)(b)
From:
Sent: 07 January 2019 09:33
To:
s38(1)(b)
Cc:
Subject: RE: North Banchory Co Limited - Release of Standard Security.

Good morning.
Have you been able to obtain a copy of the architect’s Completion Certificate or any other official
documentation that confirms the completion date of the building.
I look forward to hearing from you.
Regards.
s38(1)(b)

From:
s38(1)(b)
Sent: 26 November 2018 10:53
To:
Cc:

s38(1)(b)

s38(1)(b)

Subject: RE: North Banchory Co Limited - Release of Standard Security.

 Good morning.
Have you been able to obtain a copy of the architect’s Completion Certificate.
I look forward to hearing from you.
Regards.
s38(1)(b)

From:
s38(1)(b)
Sent: 02 November 2018 09:11
To:
Cc:

s38(1)(b)

s38(1)(b)

Subject: RE: North Banchory Co Limited - Release of Standard Security.
Good morning

s38(1)(b)

Thank you for the documentation that sent. Following discussions with my colleagues I’ve been
asked to obtain a copy of the official Completion Certificate from the project architect or from the
Local Authority. Can you please arrange for the Completion Certificate to forwarded.
Thanking you in anticipation.
Regards.
s38(1)(b)

From:
Sent: 15 October 2018 17:31
To:
Cc:

s38(1)(b)

s38(1)(b)

s38(1)(b)

Subject: RE: North Banchory Co Limited - Release of Standard Security.
s38(1)(b)

In response to your email below, we attach:
•

•

Tenancy Schedule for Banchory Business Centre as at 31 August 2007. These details were
previously provided to your
on 20 February 2013, and demonstrate that,
s38(1)(b)
apart from 2 offices in Wing F3, each of the 8 wings (4 ground floor and 4 first floor) were
occupied; and
Final Account invoice from Banchory Contractors dated 27 August 2007 for the fit out works
of Wing G4, which was the last of the 8 wings to be fitted out.

We trust you find the attached to be satisfactory and look forward to hearing from you.