Accountant In Bankruptcy v Nottay & Anor [2000] ScotCS 235 (25 August 2000)

Accountant In Bankruptcy v Nottay & Anor [2000] ScotCS 235 (25 August 2000)

The second defender's averments regarding adequate consideration are relevant and entitle her to proof before answer, notwithstanding the terms of the disposition. In relation to the machines, as restoration is not possible and the whereabouts are unknown, the pursuer is entitled to seek payment of their value as appropriate redress under section 34(4) of the 1985 Act.

Citation
[2000] ScotCS 235
Parties
Pursuer: Accountant in Bankruptcy; First Defender: Mohinder Singh Nottay; Second Defender: Rashpal Kaur Nottay
Jurisdiction
Scotland
Judgment Date
25 August 2000
Procedural Posture
Civil / Procedure Roll Discussion on Relevancy and Specification of Averments
Outcome
Second defender's averments in Answer 6 (post 'Quoad ultra denied...') excluded from probation; second defender's fourth plea-in-law repelled; proof before answer allowed quoad ultra.
Legal Topics
Gratuitous Alienation, Bankruptcy (scotland) Act 1985 Section 34, Adequate Consideration, Rectification of Deeds, Restoration of Property, Remedies in Bankruptcy
Insolvency Property Law Civil Procedure Gratuitous Alienation Bankruptcy (scotland) Act 1985 Section 34 Adequate Consideration Rectification of Deeds Restoration of Property +1 more

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Parties

Accountant in Bankruptcy

Pursuer

Mohinder Singh Nottay

First Defender

Rashpal Kaur Nottay

Second Defender

Procedural Posture

Civil / Procedure Roll Discussion on Relevancy and Specification of Averments

Legal Issues

  1. 1 Whether the second defender's averments of adequate consideration for a disposition are relevant despite the deed stating 'for love, favour and affection'
  2. 2 Whether the pursuer is entitled to seek payment of the value of moveable property (photographic machines) allegedly gratuitously alienated and subsequently sold to a third party

Ratio Decidendi

The second defender's averments regarding adequate consideration are relevant and entitle her to proof before answer, notwithstanding the terms of the disposition. In relation to the machines, as restoration is not possible and the whereabouts are unknown, the pursuer is entitled to seek payment of their value as appropriate redress under section 34(4) of the 1985 Act.

Court Disposition

Second defender's averments in Answer 6 (post 'Quoad ultra denied...') excluded from probation; second defender's fourth plea-in-law repelled; proof before answer allowed quoad ultra.

Orders

  • Exclude from probation the second defender's averments in Answer 6 following 'Quoad ultra denied save insofar as coinciding herewith'.
  • Repel the second defender's fourth plea-in-law.