LAFFERTY, GEORGE DYLAN LAFFERTY, PERMANENT TRUSTEE IN SEQUESTRATION OF THE ESTATE OF MARIAM VAN OVERWAELE AGAINST (FIRST) GEORGE AMIL AND (SECOND) MARIAM AMIL OR VAN OVERWAELE, ALSO KNOWN AS MARIAN VAN OVERWAELE [2018] ScotCS CSOH_122 (19 December 2018)

LAFFERTY, GEORGE DYLAN LAFFERTY, PERMANENT TRUSTEE IN SEQUESTRATION OF THE ESTATE OF MARIAM VAN OVERWAELE AGAINST (FIRST) GEORGE AMIL AND (SECOND) MARIAM AMIL OR VAN OVERWAELE, ALSO KNOWN AS MARIAN VAN OVERWAELE [2018] ScotCS CSOH_122 (19 December 2018)

The pursuer demonstrated a prima facie case for interdict as the disposition was granted during subsisting sequestration and inhibition, and there was a reasonable apprehension that the defenders would attempt to dispose of or burden the property, prejudicing the trustee's ability to realise value for creditors. The balance of convenience favoured the pursuer, as no prejudice to the defenders was identified, while prejudice to the trustee was clear if further dealings occurred.

Citation
[2018] ScotCS CSOH_122
Parties
Pursuer: George Dylan Lafferty, Permanent Trustee in Sequestration of the Estate of Mariam Van Overwaele; First Defender: George Amil; Second Defender: Mariam Amil or Van Overwaele, also known as Marian Van Overwaele
Jurisdiction
Scotland
Judgment Date
19 December 2018
Procedural Posture
Civil / Motion for Interim Interdict Before Calling
Outcome
Interim interdict granted in favour of the pursuer.
Legal Topics
Sequestration, Interim Interdict, Reduction of Disposition, Statutory Inhibition, Trustee Powers
Bankruptcy Property Law Civil Procedure Sequestration Interim Interdict Reduction of Disposition Statutory Inhibition Trustee Powers

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Parties

George Dylan Lafferty, Permanent Trustee in Sequestration of the Estate of Mariam Van Overwaele

Pursuer

George Amil

First Defender

Mariam Amil or Van Overwaele, also known as Marian Van Overwaele

Second Defender

Procedural Posture

Civil / Motion for Interim Interdict Before Calling

Legal Issues

  1. 1 Whether interim interdict should be granted to prevent defenders from disposing of, leasing, mortgaging, burdening or otherwise dealing with the heritable subjects vested in the trustee.
  2. 2 Whether the disposition and purported liferent granted by the second defender during sequestration are valid.

Ratio Decidendi

The pursuer demonstrated a prima facie case for interdict as the disposition was granted during subsisting sequestration and inhibition, and there was a reasonable apprehension that the defenders would attempt to dispose of or burden the property, prejudicing the trustee's ability to realise value for creditors. The balance of convenience favoured the pursuer, as no prejudice to the defenders was identified, while prejudice to the trustee was clear if further dealings occurred.

Court Disposition

Interim interdict granted in favour of the pursuer.

Orders

  • Interim interdict granted against both defenders from disponing, leasing, mortgaging, burdening or otherwise dealing with the subjects.