Bankruptcy (Scotland) Act 1985

Sections 23(4), 24(5) and 28(5).

SCHEDULE 2Adaptation of Procedure etc. Under this Act where Permanent Trustee not Elected

1Section 24(2) shall, in so far as it relates to qualifications for continuing to act as permanent trustee, apply to a permanent trustee appointed, as it applies to one elected, under this Act.

2(1)In place of sections 25 and 26, sub-paragraphs (2) and (3) below shall have effect.

(2)The sheriff clerk shall issue to the permanent trustee an act and warrant in such form as shall be prescribed by the Court of Session by act of sederunt,

(3)The permanent trustee, on appointment, shall make such insertions in the sederunt book as are appropriate to provide a record of the sequestration process before his appointment, but he shall make no insertion therein relating to the written comments made by the interim trustee under section 20(2)(c) of this Act.

3(1)In place of subsections (1) to (5) of section 28 sub-paragraphs (2) and (3) below shall have effect.

(2)The permanent trustee may resign office with the consent of the Accountant in Bankruptcy or the sheriff.

(3)Where the permanent trustee resigns under sub-paragraph (2) above, or dies, a person nominated by the Accountant in Bankruptcy from the list of interim trustees, not being a person ineligible for election as permanent trustee under section 24(2) of this Act, shall forthwith apply to the sheriff for appointment as permanent trustee, and the sheriff shall thereupon so appoint him.

4In section 29—

(a)subsection (5) shall not have effect but sub-paragraph (3) of paragraph 3 above shall apply where the permanent trustee has been removed from office under subsection (1)(b) of section 29 of this Act or following an appeal under subsection (4) of that section as that sub-paragraph applies where he resigns or dies;

(b)subsection (6) shall have effect as if for the words from " (b) " to the end there were substituted the words—

“(b)appoint as permanent trustee a person nominated by the Accountant in Bankruptcy from the list of interim trustees, not being a person ineligible for election as permanent trustee under section 24(2) of this Act.”;

(c)subsection (7) shall not have effect; and

(d)subsection (8) shall have effect as if for the word " (4)" there were substituted the word " (5) ".

5Where an appointment is made under paragraph 3(3), or by virtue of paragraph 4(a) or (b), above the provisions of this Act shall continue to have effect as regards the sequestration subject to such modifications and with such further provisions as are set out in this Schedule.

6Section 30 shall not have effect, and, in any sequestration to which this Schedule applies by virtue of section 28(5) of this Act, any commissioners already holding office shall cease to do so.

7In section 39—

(a)in subsection (1), the reference to the permanent trustee's confirmation in office shall be construed as a reference to his receiving the act and warrant issued under paragraph 2(2) of this Schedule ;

(b)subsection (2) shall have effect as if for the words " if there are commissioners only with the consent of the commissioners, the creditors or the court" there were substituted the words " only with the consent of the Accountant in Bankruptcy ".

8Any power under section 44 or 45 to apply to the sheriff for an order requiring attendance shall be exerciseable only with the consent of the Accountant in Bankruptcy (unless, in the case of section 45(1), the Accountant in Bankruptcy has requested the application).

9In subsection (1) of section 53 the reference to the period in respect of which submission is to be made by the permanent trustee shall, where that period is the first accounting period, be construed as including a reference to any period during which he has acted as interim trustee in the sequestration; and that section shall have effect as if after that subsection there were inserted the following subsection—

“(1A)Where the funds of the debtor's estate are insufficient to meet the amount of the outlays and remuneration of both the interim trustee and the permanent trustee—

(a)that amount to the extent of the insufficiency shall be met by the Accountant in Bankruptcy out of money provided under section 76(2Xa) of this Act; and

(b)the Accountant in Bankruptcy in his determination under subsection (3)(a)ii) below shall specify the respective sums to be met out of the debtor's estate and out of money so provided :

Provided that—

(i)no amount shall be payable by virtue of paragraph (a) above if any dividend has been paid to creditors in the sequestration ; and

(ii)if any amount is paid by virtue of that paragraph and a subsequent distribution of the estate is proposed, that amount shall be handed over to the Secretary of State before such distribution is made.”.