PETITION OF JENNIFER MARIA MONAGHAN OR MACKIN FOR SEQUESTRATION OF THE ESTATE OF ALLAN JAMES MACKIN [2015] ScotSC 73 (08 December 2015)

PETITION OF JENNIFER MARIA MONAGHAN OR MACKIN FOR SEQUESTRATION OF THE ESTATE OF ALLAN JAMES MACKIN [2015] ScotSC 73 (08 December 2015)

Regulation 30 of the 2011 Regulations does not bar the presentation of a sequestration petition or the granting of a warrant to cite while a DAS application is pending; section 12(2) of the 1985 Act requires the Sheriff to grant warrant to cite, and delegated legislation cannot override this primary legislation.

Citation
[2015] ScotSC 73
Parties
Petitioner: Jennifer Maria Monaghan or Mackin; Respondent: Allan James Mackin
Jurisdiction
Scotland
Judgment Date
08 December 2015
Procedural Posture
Sequestration Petition / First Order and Note on Reasons
Outcome
Warrant to cite granted; first order made in sequestration petition.
Legal Topics
Sequestration, Debt Arrangement Scheme (das), Interpretation of Primary and Subordinate Legislation, Jurisdiction of Sheriff Court
Insolvency Bankruptcy Sequestration Debt Arrangement Scheme (das) Interpretation of Primary and Subordinate Legislation Jurisdiction of Sheriff Court

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Parties

Jennifer Maria Monaghan or Mackin

Petitioner

Allan James Mackin

Respondent

Procedural Posture

Sequestration Petition / First Order and Note on Reasons

Legal Issues

  1. 1 Whether regulation 30 of the Debt Arrangement Scheme (Scotland) Regulations 2011 bars presentation of a sequestration petition while a DAS application is pending
  2. 2 Interpretation of section 12(2) of the Bankruptcy (Scotland) Act 1985 in light of regulation 30

Ratio Decidendi

Regulation 30 of the 2011 Regulations does not bar the presentation of a sequestration petition or the granting of a warrant to cite while a DAS application is pending; section 12(2) of the 1985 Act requires the Sheriff to grant warrant to cite, and delegated legislation cannot override this primary legislation.

Court Disposition

Warrant to cite granted; first order made in sequestration petition.

Orders

  • Citation allowed by any legal mode, not requiring personal service due to respondent's absence from Scotland.
  • Intimation of petition to be made to respondent's solicitor.