FOX, AS TRUSTEE ON THE SEQUESTRATED ESTATE OF JOHN O'BOYLE AGAINST KAREN BRENNAN [2018] ScotCS CSOH_90 (04 September 2018)

FOX, AS TRUSTEE ON THE SEQUESTRATED ESTATE OF JOHN O'BOYLE AGAINST KAREN BRENNAN [2018] ScotCS CSOH_90 (04 September 2018)

The transfer of £190,960 by the debtor to the defender was a gratuitous alienation under s 34(1) of the Bankruptcy (Scotland) Act 1985, as it was made for no adequate consideration and not restored to the sequestrated estate. Repayment to the debtor after sequestration and discharge does not constitute restoration to the estate or adequate consideration. The defender’s averments do not disclose a relevant defence; decree must be granted for restoration to the trustee.

Citation
[2018] ScotCS CSOH_90
Parties
Pursuer: Thomas Fox, as trustee on the sequestrated estate of John O’Boyle; Defender: Karen Brennan
Jurisdiction
Scotland
Judgment Date
04 September 2018
Procedural Posture
Civil Bankruptcy (gratuitous Alienation) / Debate on the Commercial Roll (pleadings Challenge)
Outcome
Defender’s averments in respect of the first alienation are irrelevant; decree to be granted in favour of the pursuer for restoration of the sum to the sequestrated estate.
Legal Topics
Gratuitous Alienation, Restoration of Property, Adequate Consideration, Sequestration, Trustee Powers, Creditor Protection
Insolvency Law Bankruptcy Law Property Law Gratuitous Alienation Restoration of Property Adequate Consideration Sequestration Trustee Powers +1 more

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Parties

Thomas Fox, as trustee on the sequestrated estate of John O’Boyle

Pursuer

Karen Brennan

Defender

Procedural Posture

Civil Bankruptcy (gratuitous Alienation) / Debate on the Commercial Roll (pleadings Challenge)

Legal Issues

  1. 1 Whether the transfer of £190,960 by the debtor to the defender was a gratuitous alienation under s 34 of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether subsequent repayment to the debtor after sequestration constitutes restoration to the debtor’s estate or adequate consideration under s 34(4)
  3. 3 Whether the defender’s averments disclose a relevant defence to the pursuer’s challenge

Ratio Decidendi

The transfer of £190,960 by the debtor to the defender was a gratuitous alienation under s 34(1) of the Bankruptcy (Scotland) Act 1985, as it was made for no adequate consideration and not restored to the sequestrated estate. Repayment to the debtor after sequestration and discharge does not constitute restoration to the estate or adequate consideration. The defender’s averments do not disclose a relevant defence; decree must be granted for restoration to the trustee.

Court Disposition

Defender’s averments in respect of the first alienation are irrelevant; decree to be granted in favour of the pursuer for restoration of the sum to the sequestrated estate.

Orders

  • Case put out by order to determine terms of interlocutor, interest, and expenses.