Kerr (Aitken's Trustee) v Aitken (AP) [1999] ScotCS 282 (26 November 1999)

Kerr (Aitken's Trustee) v Aitken (AP) [1999] ScotCS 282 (26 November 1999)

The defender failed to aver or establish that any consideration of material or patrimonial value was given contemporaneously for the disposition, nor that any right of relief surrendered had practical or adequate value; thus, no relevant defence of adequate consideration was disclosed under section 34(4)(b) of the Bankruptcy (Scotland) Act 1985.

Citation
[1999] ScotCS 282
Parties
Pursuer: George Leslie Kerr (Aitken's Trustee); Defender: Helen Aitken (A. P.)
Jurisdiction
Scotland
Judgment Date
26 November 1999
Procedural Posture
Civil / Procedure Roll Discussion; Motion for Decree of Reduction De Plano
Outcome
Decree of reduction granted de plano; pursuer's first plea-in-law upheld; no relevant defence stated.
Legal Topics
Gratuitous Alienation, Adequate Consideration, Trustee Powers, Sequestration, Reduction of Disposition
Bankruptcy Property Law Gratuitous Alienation Adequate Consideration Trustee Powers Sequestration Reduction of Disposition

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Parties

George Leslie Kerr (Aitken's Trustee)

Pursuer

Helen Aitken (A. P.)

Defender

Procedural Posture

Civil / Procedure Roll Discussion; Motion for Decree of Reduction De Plano

Legal Issues

  1. 1 Whether the disposition of the bankrupt's one-half share in the house to his wife constituted a gratuitous alienation under section 34(1) of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether the defender established a relevant defence of adequate consideration under section 34(4)(b)

Ratio Decidendi

The defender failed to aver or establish that any consideration of material or patrimonial value was given contemporaneously for the disposition, nor that any right of relief surrendered had practical or adequate value; thus, no relevant defence of adequate consideration was disclosed under section 34(4)(b) of the Bankruptcy (Scotland) Act 1985.

Court Disposition

Decree of reduction granted de plano; pursuer's first plea-in-law upheld; no relevant defence stated.

Orders

  • Reduction of the disposition of 6 May 1992 granted.