Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> 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)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_122.html
Cite as: [2018] ScotCS CSOH_122, [2018] CSOH 122, 2019 GWD 1-16

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OUTER HOUSE, COURT OF SESSION

[2018] CSOH 122

A321/18

NOTE BY LORD TYRE

In the cause

GEORGE DYLAN LAFFERTY,

Permanent Trustee in Sequestration of the Estate of Mariam Van Overwaele,

Pursuer

against

(FIRST) GEORGE AMIL and (SECOND) MARIAM AMIL or VAN OVERWAELE,

also known as MARIAN VAN OVERWAELE

Defender

Pursuer: Forsyth; Drummond Miller LLP

First Defender: Party

Second Defender: Party

19 December 2018

Introduction

[1] The pursuer is the permanent trustee on the sequestrated estate of the second

defender, having been appointed by the sheriff at Dumbarton on 17 February 2000. In this

action he seeks (i) reduction of a disposition by the second defender in favour of the first

defender of heritable subjects near Helensburgh (“the subjects”) which was granted in 2009

and registered in the Land Register in 2013; (ii) reduction of any reservation of a liferent of

the subjects in favour of the second defender; (iii) interdict against both defenders from

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disponing, leasing, mortgaging, burdening or otherwise dealing with the subjects; (iv)

declarator that the defenders have no right, title or interest to occupy any part of the

subjects; and (v) decree ordaining the defenders to remove from the subjects.

[2] The case came before me on the pursuer’s motion before calling for interim interdict

in terms of the third conclusion. The second defender had lodged a caveat and appeared

personally to oppose the motion. The first defender also attended in person and I allowed

him to address the court. Having heard submissions by counsel for the pursuer and by the

defenders, I granted the motion. The defenders have now reclaimed and I have been asked

to provide a note of my reasons.

Background to the present action

[3] In the time since sequestration of the second defender was awarded in 2000, there

has been a complicated history of litigation, some of which was narrated in the opinion of

Lady Dorrian in Van Overwaele, Petitioner [2009] CSOH 164. Lady Dorrian recorded a history

in which various courts have commented on the second defender’s attempts to delay and

obstruct the sequestration. More recently, the second defender raised an action in

Dumbarton Sheriff Court to interdict the pursuer from carrying out his duties as permanent

trustee. The action was dismissed, and on 19 November 2018 an appeal to the Sheriff

Appeal Court was refused. The second defender’s pleadings were described by the sheriff

principal as “hopelessly irrelevant”.

[4] Despite the passage of time since the award of sequestration, the pursuer remains in

office. The effect of the sequestration, in terms of what was then section 32(8) of the

Bankruptcy (Scotland) Act 1985, was to vest the second defender’s estate in the pursuer for

the benefit of her creditors. On 27 January 2000, a certified copy interlocutor of the award of

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sequestration was recorded in the Register of Inhibitions and Adjudications. By virtue of

section 14(2) of the 1985 Act, such recording had inter alia the effect of an inhibition. That

effect has been renewed by a series of memoranda lodged with the registrar in accordance

with section 14(4), the most recent of which was lodged on 6 June 2017, to endure for a

period of three years.

[5] The pursuer avers that by disposition dated 20 August 2009 and registered in the

Land Register on 11 June 2013, the second defender purported to dispone the subjects to the

first defender. The consideration was stated to be “certain good and onerous causes”. The

pursuer further avers that the second defender has purportedly been granted a liferent of

the subjects. It is averred that the defenders are believed to be related and that the second

defender dealt with the subjects in bad faith, having regard to the subsistence of the

statutory inhibition.

Argument for the pursuer

[6] On behalf of the pursuer it was submitted that a prima facie case had been made out.

The documentary productions vouched the sequestration and the continuing subsistence of

the statutory inhibition. The subjects were vested in the trustee at the time when the

disposition was purportedly granted. The fact that it had been granted while the

proceedings mentioned above were pending in the Outer House was a further indication

that the purpose was to obstruct the sequestration. It could be assumed that the first

defender was aware of the second defender’s sequestration. There was a long history of

persistent attempts to interfere with the exercise by the pursuer of his duties as trustee. He

was reasonably apprehensive that what had happened before would happen again, ie that

one or other of the defenders would attempt to dispose of or burden the subjects. The

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balance of convenience favoured granting interim interdict. There would be prejudice to the

pursuer in carrying out his duties as trustee if further disposal or burdening of the property

were to occur.

Arguments for the defenders

[7] The first defender stated that he had bought the subjects in good faith. There was no

intention to dispose of the subjects, which were the family home. The granting of interim

interdict would badly affect his family and would have an adverse effect on the future

conduct of the present proceedings. In any event it was unfair to grant an interim order

when he had had no opportunity to arrange legal representation.

[8] The second defender stated that she had no creditors. The sequestration had been

invalid. The decision of the Sheriff Appeal Court would be appealed. A great deal of

money had already been paid over to the pursuer; there was no justification for realising the

value of the subjects.

Decision

[9] I was satisfied that the pursuer had demonstrated a prima facie case for interdict. The

2009 disposition had been granted at a time when the second defender must have known

that, because of the sequestration and the subsisting inhibition, she was not at liberty to

dispose of the subjects. Whatever may have been the first defender’s state of knowledge of

the legal position at that time, he must be aware of it now. The long history of attritional

litigation that has continued now for more than 18 years provides at least prima facie

evidence of a determination by the defenders to prevent the pursuer, by whatever means

possible, from selling the subjects in order to realise their value for the benefit of the

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creditors. I was satisfied that there were grounds for reasonable apprehension on the part of

the pursuer that if interdict was not granted, then one or other of the defenders might

attempt to take fresh steps, in breach of the inhibition, to dispone or burden the subjects in

order to render their realisation more difficult.

[10] I was also satisfied that the balance of convenience favoured the granting of interim

interdict. Although the first defender asserted that this would have an adverse effect on his

family, he provided no coherent explanation for this assertion. On the contrary he was

adamant that there was no intention on the part of the defenders to sell the family home. In

these circumstances I could identify no prejudice that might be occasioned to the defenders

by the granting of interim interdict, whereas there would be obvious prejudice to the

pursuer if steps had to be taken to set aside any further action that might be taken by the

defenders to take the subjects out of his control.

[11] I did not consider it necessary to adjourn the hearing to allow the first defender to

obtain legal representation. This was a motion before calling at which the first defender had

no entitlement to be present. If he wished to obtain legal representation in order to attempt

to obtain recall of the order, there was nothing to prevent him from doing so.