Heis & Ors v Perth & Kinross Council [2013] ScotCS CSOH_149 (04 September 2013)

Heis & Ors v Perth & Kinross Council [2013] ScotCS CSOH_149 (04 September 2013)

The principle of balancing of accounts in bankruptcy applies and prevents enforcement of the adjudicator's award where the claimant is insolvent, and the defence was properly raised before the adjudicator. Even if not, the doctrine can be applied at enforcement stage to prevent injustice.

Citation
[2013] ScotCS CSOH_149
Parties
Pursuer: Richard Heis & Others as Joint Administrators of Connaught Partnerships Ltd (in administration); Defender: Perth & Kinross Council
Jurisdiction
Scotland
Judgment Date
04 September 2013
Procedural Posture
Commercial Enforcement / Motion for Summary Decree / Decree De Plano
Outcome
motion for summary decree refused; adjudicator's award reduced
Legal Topics
Adjudication Enforcement, Balancing of Accounts in Bankruptcy, Set Off, Insolvency Impact on Adjudication, Summary Decree
Construction Law Insolvency Law Contract Law Adjudication Enforcement Balancing of Accounts in Bankruptcy Set Off Insolvency Impact on Adjudication Summary Decree

Case Brief

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Parties

Richard Heis & Others as Joint Administrators of Connaught Partnerships Ltd (in administration)

Pursuer

Perth & Kinross Council

Defender

Procedural Posture

Commercial Enforcement / Motion for Summary Decree / Decree De Plano

Legal Issues

  1. 1 Whether the principle of balancing of accounts in bankruptcy prevents enforcement of an adjudicator's award when the claimant is insolvent
  2. 2 Whether the defence of balancing of accounts in bankruptcy was properly raised before the adjudicator
  3. 3 Whether failure to raise the defence before the adjudicator precludes its application at enforcement stage

Ratio Decidendi

The principle of balancing of accounts in bankruptcy applies and prevents enforcement of the adjudicator's award where the claimant is insolvent, and the defence was properly raised before the adjudicator. Even if not, the doctrine can be applied at enforcement stage to prevent injustice.

Court Disposition

motion for summary decree refused; adjudicator's award reduced

Orders

  • Case put out by order for further procedure
  • Adjudicator's award reduced ope exceptionis