Yvonne Quinn As Trustee In The Sequestrated Estate Of John O'boyle Against Karen Brennan
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lord President |
| Neutral Citation | [2020] CSIH 3 |
| Date | 23 October 2019 |
| Docket Number | CA116/17 |
| Court | Court of Session |
| Published date | 22 January 2020 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 3
CA116/17
Lord President
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the cause
YVONNE QUINN as Trustee in the sequestrated estate of John O’Boyle
Pursuer and Respondent
against
KAREN BRENNAN
Defender and Reclaimer
Pursuer and Respondent: McDougall; Halliday Campbell WS (for Kepstorn Soli citors)
Defender and Reclaimer: Gardiner; TC Young LLP
23 October 2019
[1] The pursuer is the trustee currently acting on the sequestrated estate of John O’Boyle
(“the debtor”). The debtor was sequestrated on 11 February 2015, on his own application,
and was subsequently discharged from sequestration on 1 May 2016.
[2] In December 2017, the pursuer raised an action on the commercial roll seeking
declarator that certain payments made by the debtor to the defender were gratuitous
alienations in terms of section 34 of the Bankruptcy (Scotland) Act 1985. Payments of
£190,960 (“the first alienation”) and £67,837.97 (“the second alienation”) were said to have
2
been made by the debtor to the defender in August and September 2014, and it is to those
payments that the declarator relates. The pursuer also concluded for payment of those sums
by the defender. The first of those payments, of £190,960, was used to acquire a house at
16 Attlee Road, East Kilbride, title to which was taken in the defender’s name. The defender
admits the payment of £190,960 made in August 2014 and the acquisition of the house, but
she avers by way of defence that the house was sold in January 2017, and that on 17 January
2017 she paid the sum of £197,462.20 to the debtor. She contends that the payment made by
her on 17 January 2017 constituted adequate consideration for the alienation, and that she
thus restored the relevant property to the debtor’s estate. The critical question is
accordingly whether the defender is correct in averring that she provided adequate
consideration for the alienation of £190,960 made in August 2014.
[3] The action proceeded to a debate before the Lord Ordinary on 17 May 2018. At the
hearing, the pursuer accepted that the defender’s averments relating to the second alienation
were suitable for inquiry, and accordingly the only challenge was to the defender’s
pleadings in respect of the first alienation. The Lord Ordinary, in an interlocutor dated
12 September 2018 and corrected by a further interlocutor of 12 October 2018, held inter alia
that the defence in respect of the first alienation was irrelevant, and that declarator should
accordingly be granted that that payment was a gratuitous alienation. He further decerned
against the defender for payment to the pursuer of the sum of £190,960. The defender has
now reclaimed against that interlocutor of 12 September 2018 as corrected by the
interlocutor of 12 October.
The relevant statutory provisions
[5] The date of sequestration precedes the coming into force of the Bankruptcy
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