B.A.J. CHARTERED ACCOUNTANT, PK (UK) LLP AGAINST SCS AND AS [2014] ScotSC 28 (04 June 2014)

B.A.J. CHARTERED ACCOUNTANT, PK (UK) LLP AGAINST SCS AND AS [2014] ScotSC 28 (04 June 2014)

The Pursuer failed to comply with the statutory obligation under section 41 to inform the non-entitled spouse (second Defender) of her rights. This non-compliance precludes granting authority to sell or decree for removal against her at this stage. The court would otherwise have granted the Pursuer's application under section 40, but compliance with section 41 is a prerequisite. The matter is continued to allow parties to consider options, including possible application for relief under section 63.

Citation
[2014] ScotSC 28
Parties
Pursuer: B A J, Chartered Accountant, PFK(UK)LLP; First Defender: SDS; Second Defender: AS
Jurisdiction
Scotland
Judgment Date
04 June 2014
Procedural Posture
Civil Recovery of Possession and Authority to Sell Under Bankruptcy Law / Post Proof, Judgment on Merits, Further Hearing Appointed for Submissions and Expenses
Outcome
No final decree; action continued for further submissions and to address expenses. Authority to sell and removal not granted at this stage due to non-compliance with section 41.
Legal Topics
Trustee's Authority to Sell Property, Obligation to Inform Non Entitled Spouse Under Bankruptcy (scotland) Act 1985 S41, Recall of Sequestration, Occupancy Rights of Non Entitled Spouse, Court's Discretion Under S40
Bankruptcy Property Law Family Law Trustee's Authority to Sell Property Obligation to Inform Non Entitled Spouse Under Bankruptcy (scotland) Act 1985 S41 Recall of Sequestration Occupancy Rights of Non Entitled Spouse Court's Discretion Under S40

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Parties

B A J, Chartered Accountant, PFK(UK)LLP

Pursuer

SDS

First Defender

AS

Second Defender

Procedural Posture

Civil Recovery of Possession and Authority to Sell Under Bankruptcy Law / Post Proof, Judgment on Merits, Further Hearing Appointed for Submissions and Expenses

Legal Issues

  1. 1 Whether the trustee complied with the obligation to inform the non-entitled spouse under section 41 of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether authority to sell the property should be granted under section 40 of the Bankruptcy (Scotland) Act 1985
  3. 3 Whether failure to inform under section 41 affects the competence of the action against the second defender

Ratio Decidendi

The Pursuer failed to comply with the statutory obligation under section 41 to inform the non-entitled spouse (second Defender) of her rights. This non-compliance precludes granting authority to sell or decree for removal against her at this stage. The court would otherwise have granted the Pursuer's application under section 40, but compliance with section 41 is a prerequisite. The matter is continued to allow parties to consider options, including possible application for relief under section 63.

Court Disposition

No final decree; action continued for further submissions and to address expenses. Authority to sell and removal not granted at this stage due to non-compliance with section 41.

Orders

  • Parties appointed to be heard as to further procedure and all questions of expenses on 4 June 2014 at 2pm.
  • No decree for removal or authority to sell granted at this stage.