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pinalta
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320 Posts

Posted - 06 January 2020 :  14:46:35  Show Profile  Reply with Quote
Interesting ruling in the MacDonald and another v carnbroe estates LTD court case .

TDA (Debt Adviser)
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13254 Posts

Posted - 06 January 2020 :  15:30:55  Show Profile  Reply with Quote
Hi pinalta.

I haven't followed this. What are the aspects of the ruling that you've found interesting?

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pinalta
Advanced Contributor

320 Posts

Posted - 06 January 2020 :  16:11:03  Show Profile  Reply with Quote
That Scottish courts are at a disadvantage as how the law is used , the full ruling is on the supreme courts web site .It caught my attention because it was talking about acts of reduction . Something that my ex trustee was trying to threaten me with a few years ago .

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TDA (Debt Adviser)
Trust Deed Expert



13254 Posts

Posted - 06 January 2020 :  20:39:26  Show Profile  Reply with Quote
I do remember that pinalta.

What a long time has passed since you were working so hard to sort all of this out. I didn't realise until I checked back on your previous posts on this subject.

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Paul McDougall
Trust Deed Expert



41 Posts

Posted - 07 January 2020 :  10:37:16  Show Profile  Reply with Quote
This is quite an interesting judgement however, this was brought into case law under a corporate insolvency. Whether this will apply to personal insolvency is to be seen but the general consensus is that this judgement offers more uncertainty.

Not to get to technical, this judgement redefines the remedies available to the court where an asset has been transferred at inadequate value or no value at all (gratuitous alienation)

Generally speaking, this crops up within personal insolvency where a husband or wife transfers an asset to their spouse prior to entering into insolvency. This happens for a variety of reasons such as separation etc.

There are other forms of gratuitous alienation but the one mentioned above is the most common.

In this case, the Supreme Court agreed an alienation had taken place. The normal course of action was to seek a reduction of the transfer. The court decided that was wrong and that the legislation could offer more interpretations to allow flexibility.

I agree with pinality, the Scottish court system is at a disadvantage to England as remedies that are available offer more flexibility.



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Edited by - Paul McDougall on 07 January 2020 10:38:12
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