Aberdeen sheriff grants authority for trustee in sequestration to sell couple’s family home

About this case:

• Citation:
  [2025] SC ABE 31
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Andrew Miller

Richard Bathgate, who became the trustee in sequestration following the retirement of the original trustee, argued that the respondents, referred to as ‘David Black’ and ‘Jennifer Black’, had been non-cooperative during the course of the sequestration. The respondents resisted the application, arguing that the sale would cause extreme hardship to them and their family.

The application was considered by Sheriff Andrew Miller at Aberdeen Sheriff Court, with Torrance, solicitor, appearing for the applicant and Mr Black representing himself and the second respondent.

Conflict of interest

Sequestration was awarded in respect of both respondents on 4 February 2021, with the date of sequestration established as 6 June 2019. Neither respondent had provided the applicant or his predecessor with a completed statement of assets and liabilities or statement of undertakings as required by the Bankruptcy (Scotland) Act 2016. On 8 July 2024, the applicant lodged identical applications in relation to each sequestration process seeking authority under section 113 of the 2016 Act to sell the respondents’ family home.

It was asserted by the respondents that they had attempted to commence proceedings to withdraw the awards of sequestration, but they had not been in a position financially to do so. They also referred to a potential conflict of interest on the basis that Mr Torrance’s firm were said to be creditors of the respondents in relation to fees for “historical work” carried out on behalf of the second respondent prior to the sequestration.

Each respondent further asserted that the sale of the family home would cause extreme hardship, referring to severe facial pain suffered by Mrs Black for which no treatment had been found and to Mr Black’s ongoing mental health counselling. Additionally, their son remained in full-time education and required stability to complete his studies, with his final exams and dissertation for his master’s degree due in September 2025.

For the applicant it was submitted that the family home was the only substantial asset in the sequestration of which he was aware. It was not suggested that Mr Torrance’s previous work for Mrs Black had resulted in the applicant deploying personal information about the respondents in the course of the applications which was obtained in improper circumstances. Their averments on hardship failed to meet the minimum requirements of relevancy and specification.

Fleeting involvement

In his decision, Sheriff Miller said of the relevancy of the respondents’ arguments: “I agreed with Mr Torrance that the respondents’ averments with regard to their sense of grievance in relation to the original sequestration petitions and their desire to seek recall of the award of sequestration were irrelevant to these applications. I also agreed with Mr Torrance that the respondents’ averments with regard to the issue of conflict of interest were irrelevant.”

On that latter point, he continued: “I could not accept that such fleeting involvement as Mr Torrance and his firm may have had in historical matters in the background of the petitions for sequestration which were warranted in June 2019 and granted in February 2021 could have resulted in any prejudice which could conceivably have entitled the court to refuse to grant the orders craved. Far from relying on any privileged information about the respondents’ financial circumstances which might hypothetically have been gathered by Mr Torrance or his firm from a brief, historical professional connection with the respondents, the applicant’s position was that, due to their non-cooperation, he had virtually no information about those matters.”

Considering additional material provided by the respondents on their health, Sheriff Miller said: “Their answers to these applications failed to meet the minimum standards of relevancy and specification. There were no averments about any housing options which have been explored, or which might be available to them, in the event of the sale of the family home. There were no averments to indicate any medical basis upon which the court might conclude that the sale of the family home might aggravate any medical issues affecting either respondent to an extent which might justify refusal of the orders craved.”

He concluded: “Having regard to all the circumstances of these applications, so far as known to me, and applying the ‘ultimate calculus’ identified by the Sheriff Appeal Court in Accountant in Bankruptcy v Brooks (2020), I was left with no sufficient basis for refusing the orders craved by the applicant. In the case of each respondent, their interest in the family home is the only substantial asset known to the applicant, and no payments have been made towards the mortgage since March 2020. The equity in the family home indicates that the sale of the property is likely to generate substantial funds for distribution to creditors.”

Sheriff Miller therefore granted the orders craved by the applicant, but having regard to the impact on the respondents’ son he attached a condition that the date of entry in relation to any sale should not be prior to 10 October 2025.