ACCOUNTANT IN BANKRUPTCY v. DAVID CLOUGH AND OTHERS [2010] ScotSC 152 (08 September 2010)

ACCOUNTANT IN BANKRUPTCY v. DAVID CLOUGH AND OTHERS [2010] ScotSC 152 (08 September 2010)

The Second Defender's pleadings, even as amended, do not disclose sufficient or specific circumstances under Section 40(2) of the 1985 Act to justify refusal or postponement of the trustee's application for authority to sell the family home. The interests of creditors and public interest outweigh the vague and inspecific averments of the Second Defender. The trustee is entitled to decree for division and sale.

Citation
[2010] ScotSC 152
Parties
Pursuer: Accountant in Bankruptcy, permanent trustee on the Sequestrated Estate of Mrs Diane Clough; First Defender: David Clough; Second Defender: Diane Kinniburgh or Clough; Third Defender: Robyn Ellen Kinniburgh-Clough
Jurisdiction
Scotland
Judgment Date
08 September 2010
Procedural Posture
Civil Bankruptcy / Debate on Preliminary Pleas and Amended Pleadings
Outcome
Decree granted for the Pursuer in terms of Craves 1, 2, and 3; pleas for the Second Defender repelled; expenses awarded to the Pursuer; further orders reserved.
Legal Topics
Division and Sale, Trustee Powers, Family Home Protection, Recall of Sequestration, Creditor Interests
Bankruptcy Property Law Civil Procedure Division and Sale Trustee Powers Family Home Protection Recall of Sequestration Creditor Interests

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Parties

Accountant in Bankruptcy, permanent trustee on the Sequestrated Estate of Mrs Diane Clough

Pursuer

David Clough

First Defender

Diane Kinniburgh or Clough

Second Defender

Robyn Ellen Kinniburgh-Clough

Third Defender

Procedural Posture

Civil Bankruptcy / Debate on Preliminary Pleas and Amended Pleadings

Legal Issues

  1. 1 Whether the permanent trustee is entitled to insist on division and sale of the family home under the Bankruptcy (Scotland) Act 1985, Section 40, without the debtor's consent
  2. 2 Whether the Second Defender's pleadings disclose a relevant defence to the trustee's application for authority to sell the property
  3. 3 Whether the interests of the debtor's child and the length of residence justify refusal or postponement of the sale

Ratio Decidendi

The Second Defender's pleadings, even as amended, do not disclose sufficient or specific circumstances under Section 40(2) of the 1985 Act to justify refusal or postponement of the trustee's application for authority to sell the family home. The interests of creditors and public interest outweigh the vague and inspecific averments of the Second Defender. The trustee is entitled to decree for division and sale.

Court Disposition

Decree granted for the Pursuer in terms of Craves 1, 2, and 3; pleas for the Second Defender repelled; expenses awarded to the Pursuer; further orders reserved.

Orders

  • Authority granted to the trustee to insist on division and sale of 19/1 Allanfield, Edinburgh.
  • Second Defender's consent to sale dispensed with.