Appeal in the cause The Accountant in Bankruptcy as Trustee of the Sequestrated Estate of Peter Davies against Krystyna Sieroslawski as Executrix Nominate of the Sequestrated Estate of Peter Davies (Sheriff Appeal Court Civil) [2024] SACCIV 35 (26 July 2024)

Appeal in the cause The Accountant in Bankruptcy as Trustee of the Sequestrated Estate of Peter Davies against Krystyna Sieroslawski as Executrix Nominate of the Sequestrated Estate of Peter Davies (Sheriff Appeal Court Civil) [2024] SACCIV 35 (26 July 2024)

The sheriff erred in law by failing to provide a fair hearing, relying on findings unsupported by evidence, considering irrelevant factors, and not admitting affidavit evidence. The interests of the creditors outweigh those of the respondent and her son, given the son's absence and the respondent's long occupation. Authority to sell the property should be granted to the trustee.

Citation
[2024] SACCIV 35
Parties
Applicant and Appellant: The Accountant in Bankruptcy as Trustee of the Sequestrated Estate of Peter Davies; Defender and Respondent: Krystyna Sieroslawski as Executrix Nominate of the Sequestrated Estate of Peter Davies
Jurisdiction
Scotland
Judgment Date
26 July 2024
Procedural Posture
Civil Appeal / Appeal From Sheriff's Refusal of Summary Application
Outcome
Appeal allowed
Legal Topics
Trustee's Power to Sell Heritable Property, Family Home in Sequestration, Statutory Interpretation of Bankruptcy (scotland) Act 1985, Admissibility of Affidavit Evidence, Discretion Under Section 40(2)
Bankruptcy Property Law Civil Procedure Trustee's Power to Sell Heritable Property Family Home in Sequestration Statutory Interpretation of Bankruptcy (scotland) Act 1985 Admissibility of Affidavit Evidence Discretion Under Section 40(2)

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Parties

The Accountant in Bankruptcy as Trustee of the Sequestrated Estate of Peter Davies

Applicant and Appellant

Krystyna Sieroslawski as Executrix Nominate of the Sequestrated Estate of Peter Davies

Defender and Respondent

Procedural Posture

Civil Appeal / Appeal From Sheriff's Refusal of Summary Application

Legal Issues

  1. 1 Whether the sheriff erred in refusing the trustee's application to sell heritable property under section 40(1)(b) of the Bankruptcy (Scotland) Act 1985
  2. 2 Whether the sheriff failed to provide a fair hearing and relied on irrelevant considerations
  3. 3 Whether the sheriff erred in not considering affidavit evidence

Ratio Decidendi

The sheriff erred in law by failing to provide a fair hearing, relying on findings unsupported by evidence, considering irrelevant factors, and not admitting affidavit evidence. The interests of the creditors outweigh those of the respondent and her son, given the son's absence and the respondent's long occupation. Authority to sell the property should be granted to the trustee.

Court Disposition

Appeal allowed

Orders

  • Respondent sisted as executrix nominate of Mr Davies's estate
  • Sheriff's interlocutors of 22 December 2023 and 17 January 2024 recalled