Thomas Fox, As Trustee On The Sequestrated Estate Of John O'boyle Against Karen Brennan
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2018] CSOH 90 |
| Docket Number | CA116/17 |
| Date | 04 September 2018 |
| Court | Court of Session |
| Published date | 04 September 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 90
CA116/17
OPINION OF LORD DOHERTY
in the cause
THOMAS FOX, as trustee on the sequestrated estate of John O’Boyle
Pursuer
against
KAREN BRENNAN
Defender
Pursuer: MacDougall; Halliday Campbell WS
Defender: J Gardiner; TC Young LLP
4 September 2018
Introduction
[1] The pursuer is the trustee on the sequestrated estate of John O’Boyle (“the debtor”).
The debtor was sequestrated on 11 February 2015 on his own debtor application. In this
action the pursuer seeks declarator that the debtor made two gratuitous alienations to the
defender. The alienations - of £190,960 (“the first alienation”) and £67,837.97 (“the second
alienation”) - are said to have been made in August and September 2014. The pursuer also
seeks payment of those sums by the defender.
[2] The case came before me for a debate on the commercial roll. Counsel for the
pursuer accepted that the defender’s averments anent the second alienation are suitable for
2
inquiry. Accordingly it is only necessary to consider the arguments which were advanced in
relation to the first alienation.
The pleadings
The summons
[3] The pursuer’s averments may be summarised as follows. At all material times the
defender has been the debtor’s partner. On 28 August 2014 the debtor transferred £190,960
to an account created to finance the acquisition of a house at 16 Attlee Road, East Kilbride.
Title to 16 Attlee Road was taken in the defender’s sole name on 4 September 2014 and the
debtor and the defender lived together there. The defender sold the house for £200,000 in
January 2017 and on 17 January 2017 she paid £197,462.20 to the debtor. The transfer of
£190,960 and putting title in the defender’s name was a gratuitous alienation in terms of s 34
of the Bankruptcy (Scotland) Act 1985. It was granted for no adequate consideration.
Following the sale of 16 Attlee Road the debtor and the defender have lived together at a flat
owned by the defender. The defender acted in bad faith by facilitating the putting of funds
out of the reach of the debtor’s creditors.
The defences
[4] The defender admits that £190,960 was transferred to an account created to finance
the acquisition of 16 Attlee Road and that title to that house was taken in her sole name. She
admits that she was the debtor’s partner at the time but she denies that they lived together at
Attlee Road or that they now live together at the flat owned by her. She denies that she
knew or ought to have known about the debtor’s sequestration or his financial affairs at the
relevant times, or that she acted in bad faith with a view to putting funds out of the reach of
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