Bankruptcy and Debt Advice (Scotland) Act 2014

29 Replacement of trustee acting in more than one sequestration

For section 28A of the 1985 Act, substitute—

“28A Replacement of trustee acting in more than one sequestration

(1) This section applies where a trustee acting as such in two or more sequestrations—

(a) dies,

(b) ceases to be qualified to continue to act as trustee by virtue of section 24(2), or

(c) becomes subject to the circumstances mentioned in subsection (2).

(2) The circumstances are that—

(a) there is a conflict of interest affecting the trustee, or

(b) there is a change in the personal circumstances of the trustee,

which prevents, or makes it impracticable for, the trustee to carry out the trustee’s functions.

(3) The Accountant in Bankruptcy may in a case where subsection (1)(b) or (c) applies, determine that the trustee is removed from office in each sequestration in which the trustee has ceased to be qualified.

(4) The Accountant in Bankruptcy may appoint as the trustee in each sequestration in which the former trustee was acting a person—

(a) determined by the Accountant in Bankruptcy, and

(b) who consents to the appointment.

(5) A person may not be appointed under subsection (4) if the person is ineligible for election as a replacement trustee under section 24(2).

(6) If, in relation to any sequestration, the Accountant in Bankruptcy determines that no person is to be appointed under subsection (4), the Accountant in Bankruptcy is deemed to be the trustee in that sequestration.

(7) A determination or appointment under this section may be made—

(a) on the application of any person having an interest, or

(b) without an application, where the Accountant in Bankruptcy proposes to make a determination or appointment of the Accountant in Bankruptcy’s own accord.

(8) The applicant must notify all interested persons where an application is made under subsection (7)(a).

(9) The Accountant in Bankruptcy must notify all interested persons where the Accountant in Bankruptcy proposes to make a determination or appointment by virtue of subsection (7)(b).

(10) A notice under subsection (8) or (9) must inform the recipient that the person has a right to make representations to the Accountant in Bankruptcy in relation to the application or the proposed determination or appointment before the expiry of the period of 14 days beginning with the day on which the notice is given.

(11) Before making a determination or appointment under this section, the Accountant in Bankruptcy must take into account any representations made by an interested person.

(12) The Accountant in Bankruptcy must notify any determination or appointment under this section to—

(a) the former trustee (or in the case where the former trustee has died, the former trustee’s representatives),

(b) the debtor,

(c) the trustee appointed under this section (where the trustee appointed is not the Accountant in Bankruptcy),

(d) each sheriff who awarded sequestration or to whom sequestration was transferred under section 15(2) of this Act.

(13) The trustee appointed under this section—

(a) must notify the determination or appointment under this section to every creditor known to the trustee,

(b) may require—

(i) delivery of all documents relating to each sequestration in which the former trustee was acting which are in the possession of the former trustee or the former trustee’s representatives (other than the former trustee’s accounts),

(ii) delivery of a copy of the former trustee’s accounts,

(iii) the former trustee or the former trustee’s representatives to submit the trustee’s accounts for audit to the commissioners or, if there are no commissioners, to the Accountant in Bankruptcy.

(14) Where the trustee appointed under this section requires submission of the accounts in accordance with subsection (13)(b)(iii), the commissioners or, as the case may be, the Accountant in Bankruptcy must issue a determination fixing the amount of the outlays and remuneration payable to the former trustee or the former trustee’s representatives in accordance with section 53.

28B Determination etc. under section 28A: review

(1) The persons mentioned in subsections (12)(a) and (b) and (13)(a) of section 28A may apply to the Accountant in Bankruptcy for a review by the Accountant in Bankruptcy of any determination or appointment under that section.

(2) An application under subsection (1) must be made before the expiry of the period of 14 days beginning with the day on which notice of the determination or appointment is given.

(3) If an application under subsection (1) is made, the Accountant in Bankruptcy must—

(a) take into account any representations made by an interested person before the expiry of the period of 21 days beginning with the day on which the application is made, and

(b) confirm, amend or revoke the determination or appointment before the expiry of the period of 28 days beginning with the day on which the application is made.

(4) The persons mentioned in subsections (12)(a) and (b) and (13)(a) of section 28A may appeal to the sheriff against a decision by the Accountant in Bankruptcy under subsection (3)(b) before the expiry of the period of 14 days beginning with the day of the decision.

(5) The Accountant in Bankruptcy may refer a case to the court for a direction before—

(a) making any determination or appointment under section 28A, or

(b) undertaking any review under this section.

(6) An appeal under subsection (4) and a referral under subsection (5) must be made—

(a) by a single petition to the Court of Session, where the appeal relates to two or more sequestrations and the sequestrations are, by virtue of section 9, in different sheriffdoms, and

(b) in any other case to the sheriff.”.