Cowper v. Malcolm & Ors [2005] ScotCS CSOH_117 (23 August 2005)

Cowper v. Malcolm & Ors [2005] ScotCS CSOH_117 (23 August 2005)

The court held that the alienations (dispositions) only became completely effectual upon registration (13 January 1995), thus within the 5-year period before sequestration, and that there were no relevant averments of adequate consideration as the defender had no enforceable right to the property prior to the agreement, rendering the dispositions gratuitous alienations challengeable under Section 34.

Citation
[2005] ScotCS CSOH_117
Parties
Pursuer: THE ACCOUNTANT IN BANKRUPTCY; Defender: MARGARET COWPER or ORR; Third Parties: MESSRS CONNOR MALCOLM and OTHERS
Jurisdiction
Scotland
Judgment Date
23 August 2005
Procedural Posture
Civil Bankruptcy / Procedure Roll Debate (interlocutory)
Outcome
Decree de plano granted in favour of the pursuer under Section 34 of the Bankruptcy (Scotland) Act 1985; first and second conclusions sustained.
Legal Topics
Gratuitous Alienation, Heritable Property Transfer, Adequate Consideration, Section 34 Bankruptcy (scotland) Act 1985, Reduction of Dispositions
Insolvency Property Law Bankruptcy Gratuitous Alienation Heritable Property Transfer Adequate Consideration Section 34 Bankruptcy (scotland) Act 1985 Reduction of Dispositions

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Parties

THE ACCOUNTANT IN BANKRUPTCY

Pursuer

MARGARET COWPER or ORR

Defender

MESSRS CONNOR MALCOLM and OTHERS

Third Parties

Procedural Posture

Civil Bankruptcy / Procedure Roll Debate (interlocutory)

Legal Issues

  1. 1 Whether the alienations (dispositions) became 'completely effectual' within the relevant 5-year period under Section 34 of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether the alienations were made for adequate consideration

Ratio Decidendi

The court held that the alienations (dispositions) only became completely effectual upon registration (13 January 1995), thus within the 5-year period before sequestration, and that there were no relevant averments of adequate consideration as the defender had no enforceable right to the property prior to the agreement, rendering the dispositions gratuitous alienations challengeable under Section 34.

Court Disposition

Decree de plano granted in favour of the pursuer under Section 34 of the Bankruptcy (Scotland) Act 1985; first and second conclusions sustained.

Orders

  • Reduction of the disputed dispositions transferring the property to the defender.
  • Matter put out By Order for further procedure between defender and third parties.