Alexander v Skene Investments (Aberdeen) Ltd & Ors [2011] ScotCS CSOH_144 (01 September 2011)

Alexander v Skene Investments (Aberdeen) Ltd & Ors [2011] ScotCS CSOH_144 (01 September 2011)

An averment by a pursuer that a deed was deliberately destroyed does not in itself preclude proof of the tenor of the deed. Whether such an averment precludes proof depends on the nature of the deed, by whom it was destroyed, and for what purpose. In this case, there is no legal bar to the trustee proving the tenor of the disposition in favour of Mr Pocock, even if it was deliberately destroyed to conceal ownership. The principle of tantum et tale and personal bar do not prevent the trustee from seeking to prove the tenor in these circumstances.

Citation
[2011] ScotCS CSOH_144
Parties
Pursuer: Ewen Ross Alexander as Trustee on the sequestrated estates of David George Pocock; Defender: Skene Investments (Aberdeen) Ltd and Others; Fourth Defender: Sinclair Brebner; Seventh Defender: Abbey National plc
Jurisdiction
Scotland
Judgment Date
01 September 2011
Procedural Posture
Civil Property/conveyancing / Debate on Preliminary Pleas (procedure Roll)
Outcome
Submission for Mr Brebner and Abbey National on the bar to proving the tenor rejected; trustee allowed to proceed to proof.
Legal Topics
Proving the Tenor, Personal Bar, Fraudulent Disposition, Bankruptcy Trustee Rights, Reduction of Deeds
Property Law Insolvency Law Conveyancing Proving the Tenor Personal Bar Fraudulent Disposition Bankruptcy Trustee Rights Reduction of Deeds

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Parties

Ewen Ross Alexander as Trustee on the sequestrated estates of David George Pocock

Pursuer

Skene Investments (Aberdeen) Ltd and Others

Defender

Sinclair Brebner

Fourth Defender

Abbey National plc

Seventh Defender

Procedural Posture

Civil Property/conveyancing / Debate on Preliminary Pleas (procedure Roll)

Legal Issues

  1. 1 Whether the trustee can prove the tenor of a disposition deliberately destroyed by the bankrupt
  2. 2 Whether the trustee is personally barred from challenging subsequent titles due to the conduct of the bankrupt
  3. 3 Whether the principle of tantum et tale and personal bar apply to the trustee in bankruptcy in this context

Ratio Decidendi

An averment by a pursuer that a deed was deliberately destroyed does not in itself preclude proof of the tenor of the deed. Whether such an averment precludes proof depends on the nature of the deed, by whom it was destroyed, and for what purpose. In this case, there is no legal bar to the trustee proving the tenor of the disposition in favour of Mr Pocock, even if it was deliberately destroyed to conceal ownership. The principle of tantum et tale and personal bar do not prevent the trustee from seeking to prove the tenor in these circumstances.

Court Disposition

Submission for Mr Brebner and Abbey National on the bar to proving the tenor rejected; trustee allowed to proceed to proof.

Orders

  • Preliminary plea by Mr Brebner and Abbey National on proving the tenor dismissed
  • Case to proceed to proof on the merits