Scottish Sheriff Court Decisions

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Cite as: [2008] ScotSC 30

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SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN.

B338/08.

JUDGMENT

in causa

William Cameron,

Officer of Court,

16 Queens Road

Aberdeen

APPLICANT

Aberdeen City Council,

Town House,

Castle Street,

Aberdeen

CREDITOR

Rage Electronics Ltd.

681 George Street,

Aberdeen AB5 3XP.

DEBTOR

Alok Wanchoo,

Landlord,

681 George Street,

Aberdeen AB25 3XP.

THIRD PARTY.

ABERDEEN, 6^th November, 2008.

The sheriff, having resumed consideration of the cause:-

(a) Finds in Fact.

The Creditor obtained a summary warrant against the Debtor on 1 August 2007.
The Applicant executed an attachment of goods at the Debtor's premises at 681 George Street, Aberdeen ("the premises") on 4 December 2007. The Report of the attachment is item 2 of the Inventory of Productions for the Applicant and the Creditor. The goods attached are listed in item 3 of same.
The attached goods were valued by the Applicant at £2,260.
On 7 February 2008, one of the Applicant's colleagues, a Mr Anderson, also an officer of the court, visited the premises. The purpose of the visit was (a) to ascertain that the attached goods were still on the premises, and (b) to find out whether the Debtor had any proposal for payment of the amount due to the Creditor.
The attached goods were still on the premises on 7 February 2008, and no proposal for settlement was made.
On 8 February 2008, at about 10am, the Applicant visited the premises to arrange a date for the uplift of the attached goods so that they could be sold to meet the debt due to the Creditor.
On arrival at the premises, the Applicant noted that a significant number of the attached goods were no longer where they had been at the time of the attachment.
The Applicant conducted a thorough search of the premises and was unable to find the attached goods. In the course of that search, the Applicant did not see any evidence of recent repair work having been carried out on the premises, nor did he see any tools, equipment or rubbish.
The Applicant was told by Mr Abbey Don, the Debtor's manager, who was in the premises, that the goods had been sold to customers in December 2007.
The Applicant spoke to the proprietor of the shop next door, Michael Simpson. Like the Debtor, Mr Simpson deals in computer equipment.
Mr Simpson advised the Applicant that the Third Party had attended at the premises about 7.50am on 8 February 2008, and with the assistance of others had removed computer equipment and boxes which appeared to contain computer equipment and had put them in a mustard coloured van which was driven away by the Third Party.
Mr Simpson was able to identify some of the goods taken away as those which had been attached by the Applicant.
Mr Simpson advised the Applicant that the premises had CCTV, but on revisiting them, Mr Don advised that the CCTV had not been working for months.
The Applicant was aware of a connection between the Debtor and a shop at 545 George Street. He visited that shop, but did not find any trace of the attached goods.
The Applicant has no knowledge of what happened to the attached goods which had been removed from the premises. The value of these goods is £1964.
The Third Party was aware that these goods had been attached in the hands of the Debtor.
The attached goods which had been removed from the premises were removed by the Third Party, with assistance from others, on 8 February 2008, between 7.50 and 9am. The said goods were loaded into a van which was being used by the Third Party and he drove away in that van with the said goods.

(b) Finds in law that attached goods to the value of £1964 were moved by the Third Party from the premises without authority, that the goods so removed are lost, that the Third Party is thus in breach of the attachment dated 4 December 2007 and he ought to be required to consign the value of these goods in court in terms of section 22(11) and (12)(2), the value being that determined under section 15(2) of the Debt Arrangement and Attachment (Scotland) Act 2007.

THEREFORE Grants the Application; Ordains the Third Party, Alok Wanchoo, 681 George Street, Aberdeen to consign with the Sheriff Clerk, Sheriff Court House, Aberdeen, the sum of One Thousand, Nine hundred and sixty-four pounds (£1964) within 14 days of the date of this interlocutor, said consignation should be in the form of cash or a cheque drawn on a solicitors' client account; Reserves meantime all question of expenses and any question of contempt of court under section 21(9) of said Act; Fixes 2 December 2008 at 9.30 am

as a diet to consider the two remaining issues and Ordains the Third Party to be personally present thereat.

Note.

This is an application under section 21(11) of the Debt Arrangement and Attachment (Scotland) Act 2002. The Applicant is William Cameron who is an officer of court having his place of business at 16 Queen's Road, Aberdeen. The Creditor is Aberdeen City Council, the local authority who obtained a summary warrant dated 1^st October 2007 against the Debtor, Rage Electronics Limited, 681 George Street, Aberdeen. ("the premises") The Third Party, Alok Wanchoo, is the landlord of the premises. Mr Smith, solicitor, represented the Applicant and the Creditor; Mr Howie, solicitor, represented the Third Party.

In an attempt to recover what was due under the summary warrant, an attachment was executed by the Applicant on 4^th December 2007 at the premises. In terms of section 15(2) of the Act, the Applicant valued articles which had been attached at a price which they were likely to fetch if sold on the open market, viz:-£2620.

The Applicant avers that the Third Party, Mr Wanchoo, knowing of the said attachment, moved some of these items from the premises, without authority, and that these items are now lost.

The Third Party had a preliminary plea that the application was irrelevant et separatim lacking in specification and accordingly should be dismissed. The nub of the argument put forward by Mr Howie on behalf of the Third Party was that section 21(11) of the above Act requires averments to the effect that the goods had (a) been moved, and (b) been "damaged" or "destroyed" or "lost" or "stolen". As there were no averments in relation to (b), his submission was that the application should be dismissed.

I repelled that preliminary plea because the application states that the articles were removed from the premises in breach of an attachment. That is set out in a report of auction dated 29^th February 2008 which is appended to a letter dated 3^rd March 2008 from Messrs Scott & Company, the Applicant's firm to the sheriff clerk, Sheriff Court, Aberdeen. (No. 4 of the Inventory). That letter states, "The majority of the attached articles could not be found within the Debtors' premises at 681 George Street, Aberdeen on the date and time arranged for the uplift of the articles, being 8^th February 2008 at 10.00 am."

The purpose of the legislation dealing with attachment (which replaces the former legislation dealing with poinding) is to ensure that items attached by officers of the court remain on the premises for the benefit of the creditor instructing the attachment. If the officer appears at the premises on the appointed day for uplift and some or all of the attached items are not there, he can be sure that they have been "moved," but it may not be possible for the officer to say whether the items have been "damaged, destroyed, lost or stolen." In my opinion, there is no requirement for the officer to have specific averments to that effect because the items are "lost" to the creditor, if they have been moved and cannot be found.

The matter then proceeded to an evidential hearing. The Creditor called two witnesses, the Applicant, William Cameron, the sheriff officer who had carried out the attachment and Martin Simpson. The Third Party gave evidence and evidence was given on his behalf by Albert McKinlay.

Mr Cameron's evidence was that he had carried out the attachment on 4^th December 2007 and had arranged with the Debtor to return on 8^th February 2008 to arrange removal of the attached goods for the purposes of sale. Prior to that visit, on 7^th February 2008, a Mr Anderson, who is also an officer of court and employed by Scott & Company, the same firm as Mr Cameron's, visited the premises and advised Mr Cameron that the attached goods were still on the premises.

On 8 February, Mr Cameron arrived at the premises shortly before 10am and observed that a large number of items which had previously been attached were no longer on the premises. Mr Cameron had made enquiries of someone who stated that he was the manager of the premises, Mr Albert Don, who advised him that the goods which had been attached had been sold to customers in December 2007, but Mr Don did not offer any further explanation. Mr Cameron conducted a thorough search of the premises and it was clear that the goods were no longer there. The goods which had been removed are shown on the schedule (No. 16) namely numbers 1 - 20, 22, 25 - 42, 44 - 48, 50 - 57, 59 - 80, 82, 83, 85 and 89 - 125.

Mr Cameron then spoke to Martin Simpson who runs a firm called North East Peripherals which is next door to the premises occupied by the Debtor. Mr Simpson had advised Mr Cameron that at 8 o'clock in the morning of 8 February, Mr Wanchoo had been seen, with others, removing large amounts of contents of the premises, and putting them in a van. Mr Simpson advised Mr Cameron to look at the CCTV for the shop. When Mr Cameron enquired of Mr Don about the CCTV, he was told that it had not been working for a number of months. Mr Cameron was aware of an associated business of the Debtor's at 545 George Street and accordingly he made enquiries there, but did not find any of the missing items.

When he arrived at the premises and conducted his thorough search, Mr Cameron's evidence was there was no indication of repairs or maintenance work being carried out, or having been carried out recently, and no sign of any tools or other items which might be used by contractors in connection with such repairs or maintenance. In his opinion, the premises were open for business.

He accepted that he had not mentioned Mr Anderson's visit to the premises in his report to the Court dated 3 March 2008, and accepted that that was an oversight. Mr Anderson was not a witness, but Mr Cameron said that it is standard practice for someone to visit a debtor prior to arranging to remove attached goods, to see that the goods are still where they were attached, and to find out if there is any prospect of a settlement without the necessity of removing the goods.

Evidence was given by Mr Simpson, the proprietor of an adjoining shop at 675 George Street. He has been in the computing business for about 20 years. His evidence was that the shop at 681 George Street was run by Mr Wanchoo and Mr Simpson said that he, Mr Simpson, was always at the premises and he was 100% sure that Mr Wanchoo was there on 8^th February. He had arrived between 7.50 and 8.00am and Mr Simpson had observed Mr Wanchoo and four or five others removing boxes and items from the premises and loading these into a mustard-coloured Renault van. He thought that was rather strange because of the hour of the day and because of the number of people involved. Mr Wanchoo, according to him, visited the premises quite frequently and while he frequently took boxes out of the premises, Mr Simpson's position was that Mr Wanchoo was never there at that hour of the morning and was almost always alone. He did accept, in cross-examination, that Mr Wanchoo frequently removed boxes.

Mr Simpson spoke to seeing a number of boxes and a number of items on top of boxes and his assumption was that the items which were in the boxes were computer equipment, because of what was printed on the outside of the boxes. The items on top of the boxes were computer equipment and he was certain that these were the items mentioned in No. 16 which had been removed by Mr Wanchoo and taken off in the van which was driven away by Mr Wanchoo. Mr Simpson's position was there no contractors had been on the premises recently. He would have known that because he and Mr Wanchoo spoke to each other quite frequently and he was certain that had there been any contractors working there, mention would have been made of that. In examination-in-chief, Mr Simpson's position was that he could identify all of the items and was able to confirm that two items, chosen at random from the list of removed items were among those which had been removed. In cross-examination, he gave a figure of 30%. Mr Simpson welcomed the existence of a competitor next door, because the Debtor was not a direct competitor, and he had no intention of trying to close down the Debtor's business.

Mr Wanchoo gave evidence. He is a property developer with a large number of properties throughout the world. He has property interests in Aberdeen which include a number of commercial properties and for some of these, he has agents. His position was that 681 George Street was a company office for Rage Electronics of which he was the landlord. They had moved there in June of 2007, but are no longer the tenants. He had no business relationship with them and he hardly ever visited the premises--one hour per week at the very most and very often only minutes. His position was that he could not remember whether he was at the premises on 8 February, but he accepted that he had moved boxes including building materials from the premises. According to him, these were not computer components, but tools, building materials and rubbish including old electrical cable and slates, following upon a leak which had been repaired. Some of the items used by the contractor for the repairs belonged to Mr Wanchoo. They were removed in big boxes and in bags, but he stated that he had not removed any of the items which had been subject to the attachment and did not know who had removed them.

In cross-examination, he accepted that he was aware of the items which had been attached. According to him, the tenants had advised him of the attachment, because some of his property had been included in the attachment and he had been in contact with Scott and Co. to have these released, but without success. When asked about the contractors on the premises and the fact that there was no invoice for the work lodged in process, he stated that an invoice could be produced. His position was that Mr Simpson was lying because Mr Simpson was keen to take over the business.

The Third Party's witness, Mr Mackinlay, stated that he was a builder, he had done work for Mr Wanchoo over a number of years and the arrangement was that, in most instances, no money was handed over as he did work for Mr Wanchoo in exchange for goods. He had carried out repairs to the premises prior to the 8^th February because there had been leaks and an ingress of water. The works had involved removing plasterboard and putting in new electrical material, including cables. He had items on the premises including a saw, electrical testing equipment etc., and there was rubbish. He had received a telephone call from a Chinese gentleman whose name he did not know, to attend early one morning. He could not give a date. He had a discussion with Mr Wanchoo, who then met him at the premises and asked him to remove his stuff. He said he had been there for 45 minutes that day, and had removed his stuff.

He said that quite a lot of water had got into the premises, that mildew had formed and that would have been obvious to someone conducting a thorough search if nothing obstructed a clear view, but stated that there would be little or no evidence of an ingress of water, and the repairs necessitated thereby, because the remedial work had been done. He had not been paid for the work, but had not issued an invoice. In addition to Mr Wanchoo, there had been some foreign person at the premises on the day. Mr Mackinlay had removed his material in a jeep, but noticed that Mr Wanchoo's yellow van was there.

Submissions for the Applicant and Creditor.

Mr Smith submitted that there was clear evidence from his witnesses who he said were credible and reliable that an attachment at the premises had taken place. A large number of these items had subsequently been removed, but despite a thorough search, they had not been found. The removal of the items had been witnessed by Mr Simpson who, being knowledgeable of the computing world, was credible and reliable in relation to what he had seen. He had spoken of Mr Wanchoo being there and to his removing the items along with others. As a result of that unauthorised removal, the purpose of the attachment had been avoided. Mr Smith invited me to hold that Mr Wanchoo and Mr Mackinlay were "beyond belief" as far as the repairs are concerned and that there was a contradiction between Mr Wanchoo's evidence and that of Mr Mackinlay in that while Mr Wanchoo said that there was in existence an invoice for the repair work, Mr Mackinlay's evidence was that there was no such invoice. Mr Smith submitted that his two witnesses had no axe to grind and while Mr Wanchoo's position was that Mr Simpson wanted to take over his business, that was not what Mr Simpson said in evidence and I was asked to prefer Mr Simpson. Mr Smith had had no opportunity to precognose Mr Mackinlay as he had not been given any notification prior to the hearing that Mr Mackinlay was being called as a witness.

In terms of section 21(11), the court had to be satisfied that the Third Party had removed attached items, without authority, and that the items were now in this case "lost". In terms of section 15(2), the agreed valuation of the lost items was £1,964. I should require Mr Wanchoo rather than Rage Electronics to consign that amount in the court, because Rage Electronics no longer existed.

Submissions for the Third Party.

Mr Howie, in response, submitted that the evidence given on behalf of the local authority was not consistent. Mr Cameron had given evidence about a visit made by his colleague, Mr Anderson. There was no reference to Mr Anderson's visit in Mr Cameron's report to the Court which in Mr Howie's opinion was "a glaring omission". No statement by Mr Anderson had been lodged and he had not been called to give evidence. Mr Anderson's evidence was therefore hearsay. As far as Mr Simpson was concerned, he was inconsistent throughout. He claimed in examination-in-chief that he could identify all the items which had been removed, but in cross-examination accepted that he could identify 30% of the items which had been removed and accordingly I should not find him either credible or reliable. In Mr Howie's submission, Mr Wanchoo was consistent throughout. His position was that he had been informed by the tenants of the attachment. He had gone along to the premises and removed goods which belonged to him and the contractor had removed his own goods. Were I of the view that the goods had been removed, the order for consignation ought to be made against Rage Electronics, the Debtor, as there was no evidence that they no longer existed. However, at the end of the day there was no evidence that the goods are "lost", and accordingly, I should dismiss the application.

Decision.

I found Mr Cameron to be both a credible and reliable witness. He had carried out the attachment and he had visited the premises on 8^th February with a view to having the attached items removed. According to him, it is common practice for an officer, not necessarily the same officer, to visit the premises the day before, or shortly before, for two principal reasons. The first is to find out whether the goods are still there and the second to find out whether any settlement is being offered. I accept that he was being candid when he said that it did not occur to him until he was looking over the notes of the case for the Hearing that Mr Anderson's evidence might be of some significance. However, whether Mr Anderson visited the premises the day before is of little significance, because the only issue is whether the attached goods were still on the premises on 8 February at the time arranged for their uplift.

As far as Mr Simpson is concerned, I regarded him as credible and reliable. When he said in examination-in-chief that he could identify all of the items which had been removed, I do not regard that as being inconsistent with what he said in cross-examination namely that he could identify 30% of the items which had been removed. The reason for that is that Mr Simpson accepted in cross-examination, as he was bound to do, that he could not know what was in the boxes, but he assumed that what was in the boxes was what was stated on the boxes. He is knowledgeable about computing components and could say, with certainty, that two items picked at random, were among the goods which he saw. He was able to identify the items which were not in boxes. He saw them being removed from the premises, loaded into a van which was then driven away by Mr Wanchoo.

Mr Wanchoo admitted the possibility that his van had been at the premises on 8^th February 2008, and that was supported by Mr Mackinlay who could not remember the specific date, but clearly the date was 8^th February 2008. I accepted Mr Simpson's evidence when he said that he had seen the items being loaded into the van and the van being driven away by Mr Wanchoo. As he had known Mr Wanchoo for some years, there could not be any doubt in his mind about his identification. I also accepted his evidence that he had no intention of trying to put Mr Wanchoo out of business and indeed welcomed the competition (it was not direct competition) of having a computer firm next door.

So far as Mr Wanchoo is concerned, I did not find him either credible or reliable. His evidence, as I have noted it, is that he had removed items on the 8^th February which belonged to him and also items belonging to the contractor because his evidence was that he had given certain items to the contractor in order to carry out the repairs. Even if I believed the evidence about the very recent repairs to the premises which I do not, there was a clear inconsistency between that evidence and that of Mr Mackinlay who said that he had removed his own items and made no reference to items being lent to him by Mr Wanchoo, or removing items belonging to Mr Wanchoo. I do not accept Mr Wanchoo's evidence when he said that he rarely, if ever, visited the premises for any more than one hour per week and that it was normally only minutes. I also do not accept his evidence when he said that what he removed from the premises was building materials. It was not clear why he would remove a contractor's tools, equipment and rubbish, especially when he had asked the contractor himself to remove his material. Mr Wanchoo admitted that he aware of the items which had been attached and in respect of the contractor's work, his position was that he could produce an invoice. Again that was contradicted by Mr Mackinlay who said that no invoices were ever issued to Mr Wanchoo. On that matter, I prefer Mr Mackinlay's evidence. I do not accept Mr Wanchoo's evidence when he said that he was unaware of who had removed items which had been attached from the premises. I prefer Mr Simpson' evidence that he had seen Mr Wanchoo and others removing items from the premises and putting them in a van which was driven away by Mr Wanchoo.

I accept Mr Mackinlay's evidence when he said that he had carried out certain works on the premises, but as he had carried out work for Mr Wanchoo over a period of time, it may very well be that the remedial work which he carried out was not apparent when Mr Cameron conducted his thorough search of the premises. However, if the remedial work had been completed some time prior to 8 February, it is perhaps a little surprising that the contractor's tools had not been removed before that.

I have no doubt that Mr Wanchoo, knowing of the attachment, removed goods which he knew had been attached and that they now cannot be found, and are now lost to the Creditor. The goods which were attached by the Applicant were computer goods. They were on the premises on 7 February 2008, but not there at 10am the following day. Mr Simpson saw computer goods being taken from the premises on 8 February prior to the Applicant's arrival at 10am. They were removed by Mr Wanchoo and others, loaded into a van which was driven away by Mr Wanchoo. On the balance of probabilities, I find that some of the attached goods were removed by Mr Wanchoo on 8 February 2008 in breach of the attachment. Despite a thorough search of the premises and another set of premises, the Applicant was unable to find the goods and that remains the position.

In the circumstances, I have decided to make an order requiring Mr Wanchoo to sign the sum of £1,964 representing the value of the attached goods which had been removed from the premises. I have not made the order against Rage Electronics, the Debtor, not because they no longer exist (in respect of which there is no evidence), but because there is no evidence that they had been involved in the removal of these goods.

As requested, I have reserved the question of expenses. The issue of a possible contempt arises and at the hearing on expenses, I have ordained the Third Party to be present.