Cleghorn v Cooper Watson Ltd [2017] ScotCS CSOH_74 (05 May 2017)

Cleghorn v Cooper Watson Ltd [2017] ScotCS CSOH_74 (05 May 2017)

The defender failed to discharge the onus of proving that the EB property was occupied as a residence by Mr Fortune with his son at the relevant date; therefore, the property was not a 'family home' under section 39A and did not cease to form part of the sequestrated estate. The disposition in favour of the defender falls to be reduced.

Citation
[2017] ScotCS CSOH_74
Parties
Pursuer: William Cleghorn as Trustee in the Sequestration of Mark Edward Fortune; Defender: Cooper Watson Limited
Jurisdiction
Scotland
Judgment Date
05 May 2017
Procedural Posture
Civil Sequestration/bankruptcy / Proof Before Answer Following Interlocutor and Inner House Appeal
Outcome
Decree granted for reduction of the disposition of the EB property; defender's pleas repelled; expenses reserved.
Legal Topics
Family Home in Sequestration, Reduction of Disposition, Section 39 a Bankruptcy (scotland) Act 1985, Burden of Proof in Family Home Definition
Bankruptcy Law Property Law Family Home in Sequestration Reduction of Disposition Section 39 a Bankruptcy (scotland) Act 1985 Burden of Proof in Family Home Definition

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Parties

William Cleghorn as Trustee in the Sequestration of Mark Edward Fortune

Pursuer

Cooper Watson Limited

Defender

Procedural Posture

Civil Sequestration/bankruptcy / Proof Before Answer Following Interlocutor and Inner House Appeal

Legal Issues

  1. 1 Whether the EB property was a 'family home' under section 39A of the Bankruptcy (Scotland) Act 1985 as at the relevant date
  2. 2 Whether the three-year period under section 39A(2) had expired before the disposition to the defender
  3. 3 Credibility and reliability of evidence regarding residence

Ratio Decidendi

The defender failed to discharge the onus of proving that the EB property was occupied as a residence by Mr Fortune with his son at the relevant date; therefore, the property was not a 'family home' under section 39A and did not cease to form part of the sequestrated estate. The disposition in favour of the defender falls to be reduced.

Court Disposition

Decree granted for reduction of the disposition of the EB property; defender's pleas repelled; expenses reserved.

Orders

  • Decree of reduction of disposition granted in favour of pursuer for EB property
  • Defender's second and third pleas in law repelled