Nova Glaze Replacement Windows Ltd v Clark Thomson & Co [2001] ScotCS 81 (30 March 2001)

Nova Glaze Replacement Windows Ltd v Clark Thomson & Co [2001] ScotCS 81 (30 March 2001)

The adequacy of consideration for the alleged gratuitous alienation cannot be determined without enquiry into the facts; the defenders' averments regarding the arrangement for future rental income as consideration are not irrelevant and require proof before answer.

Citation
[2001] ScotCS 81
Parties
Pursuer: Nova Glaze Replacement Windows Limited; Defender: Clark Thomson & Co
Jurisdiction
Scotland
Judgment Date
30 March 2001
Procedural Posture
Civil / Interlocutory (ruling on Relevancy and Allowance of Proof Before Answer)
Outcome
Proof before answer allowed on the whole case.
Legal Topics
Gratuitous Alienation, Adequacy of Consideration, Liquidation, Assignation of Lease, Director's Duties
Insolvency Company Law Property Law Gratuitous Alienation Adequacy of Consideration Liquidation Assignation of Lease Director's Duties

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Parties

Nova Glaze Replacement Windows Limited

Pursuer

Clark Thomson & Co

Defender

Procedural Posture

Civil / Interlocutory (ruling on Relevancy and Allowance of Proof Before Answer)

Legal Issues

  1. 1 Whether the assignation of the lease constituted a gratuitous alienation under section 242 of the Insolvency Act 1986
  2. 2 Whether payments made by the company for construction after the relevant date were gratuitous alienations
  3. 3 Whether the consideration for the construction costs was adequate

Ratio Decidendi

The adequacy of consideration for the alleged gratuitous alienation cannot be determined without enquiry into the facts; the defenders' averments regarding the arrangement for future rental income as consideration are not irrelevant and require proof before answer.

Court Disposition

Proof before answer allowed on the whole case.

Orders

  • Allow proof before answer on all averments concerning the lease, its assignation, construction of the building, and its funding.