Office of Public Sector Information
SCHEDULE 1 continued
32 In section 32 (vesting of estate and dealings of debtor after sequestration), in subsection (6)—
(a) for “act and warrant” substitute “order”; and
(b) for “confirming the permanent trustee’s appointment” substitute “or, as the case may be, by the Accountant in Bankruptcy appointing the trustee”.
33 In section 37(1) (effect of sequestration on diligence), for “court” substitute “sheriff or, as the case may be, the determination of the debtor application by the Accountant in Bankruptcy”.
34 (1) In section 38(1)(a) (taking possession of estate by permanent trustee), for “confirmation in office” substitute “appointment”.
(2) The heading to that section becomes “Taking possession of estate by trustee”
(3) The italic cross-heading preceding that section becomes “Administration of estate by trustee”.
35 (1) Section 39 (management and realisation of estate) is amended as follows.
(2) In subsection (1)—
(a) for “confirmation in office” substitute “appointment”;
(b) for “subsection (6)” substitute “subsections (1A), (6) and (9)”; and
(c) in paragraph (b), for “court” substitute “sheriff”.
(3) After subsection (1), insert—
“(1A) Subsection (1) above does not apply in any case where the Accountant in Bankruptcy is the trustee.”.
(4) In subsection (2)—
(a) in paragraph (a), after “on” insert “or close down”; and
(b) after paragraph (d), insert—
“(e) borrow money in so far as it is necessary for the trustee to do so to safeguard the debtor’s estate;
(f) effect or maintain insurance policies in respect of the business or property of the debtor.”.
(5) In subsection (4)(c), for “court” substitute “sheriff”.
36 In section 40 (power in relation to family home)—
(a) in subsection (1), for “court” substitute “sheriff”;
(b) in subsection (2)—
(i) for “court”, in both places where it occurs, substitute “sheriff”; and
(ii) for “it”, in both places where it occurs, substitute “he”; and
(c) the heading to that section becomes “Power of trustee in relation to the debtor’s family home”.
37 In section 41(1) (protection of occupancy rights of non-entitled spouse)—
(a) for “of issue of the act and warrant of” substitute “the order is made appointing”;
(b) for “such act and warrant is issued” substitute “trustee is appointed”;
(c) for “such issue” substitute “order making such an appointment”; and
(d) in paragraph (b)—
(i) for “Court of Session” substitute “sheriff”;
(ii) after “date”, where it second occurs, insert “of the award”;
(iii) for “it”, in both places where it occurs, substitute “he”; and
(iv) after “sequestration”, where it third occurs, insert “or, as the case may be, the debtor application”.
38 In section 41A(1) (protection of occupancy rights of civil partner)—
(a) for “of issue of the act and warrant of” substitute “the order is made appointing”;
(b) for “such act and warrant is issued” substitute “trustee is appointed”;
(c) for “such issue” substitute “order making such an appointment”; and
(d) in paragraph (b)—
(i) for “Court of Session” substitute “sheriff”;
(ii) after “date”, where it second occurs, insert “of the award”;
(iii) for “it”, in both places where it occurs, substitute “he”; and
(iv) after “sequestration”, where it third occurs, insert “or, as the case may be, the debtor application”.
39 In section 42 (contractual powers of permanent trustee)—
(a) in subsection (2), for “court” substitute “sheriff”; and
(b) the heading to that section becomes “Contractual powers of trustee”.
40 The heading to section 43 becomes “Money received by trustee”.
41 In section 46(1) (warrant to apprehend)—
(a) in paragraph (a), for “messenger-at-arms or sheriff officer” substitute “judicial officer”; and
(b) in the proviso, for “court” substitute “sheriff”.
42 In section 48 (submission of claims to permanent trustee)—
(a) in subsection (2), in paragraph (b), for the words from “and” to the end of that paragraph, substitute “which has not been rejected in whole”;
(b) in subsection (3), for the words from “for”, where it second occurs, to “trustee”, where it second occurs, substitute “after the word “trustee” there were inserted the words “”; and
(c) the heading to that section becomes “Submission of claims to trustee”.
43 In section 51(1)(d) (order of priority in distribution), for “the petition” substitute “a debtor application”.
44 (1) Section 52 (estate to be distributed in respect of accounting periods) is amended as follows.
(2) In subsection (2)—
(a) for “6”, in both places where it occurs, substitute “12”; and
(b) in paragraph (a)—
(i) at the beginning insert “subject to subsection (2ZA) below,”; and
(ii) for “of sequestration” substitute “on which sequestration is awarded”.
(3) After subsection (2), insert—
“(2ZA) Where the trustee was appointed under section 2(5) of this Act as interim trustee in the sequestration, the first accounting period shall be the period beginning with the date of his appointment as interim trustee and ending on the date 12 months after the date on which sequestration is awarded.”.
45 In section 53 (procedure after end of accounting period)—
(a) in subsection (2A)(c), for “have not determined that the account should” substitute “or, if there are no commissioners, the Accountant in Bankruptcy, have determined that the account need not”; and
(b) after subsection (6A) (as inserted by section 30(2)(b) of this Act) insert—
“(6B) Before—
(a) a debtor; or
(b) a creditor,
appeals under subsection (6) above, he must give notice to the trustee of his intention to appeal.”.
46 After section 53, insert—
(1) In any case where the Accountant in Bankruptcy is the trustee, section 53 of this Act shall have effect subject to the following modifications.
(2) For subsections (1) to (7) of that section, there shall be substituted—
“(1) At the end of each accounting period, the Accountant in Bankruptcy shall prepare accounts of his intromissions with the debtor’s estate and he shall make a determination of his fees and outlays calculated in accordance with regulations made under section 69A of this Act.
(2) Such accounts and determination shall be available for inspection by the debtor and the creditors not later than 6 weeks after the end of the accounting period to which they relate.
(3) In making a determination as mentioned in subsection (1) above, the Accountant in Bankruptcy may take into account any adjustment which he may wish to make in the amount of his remuneration fixed in respect of any earlier accounting period.
(4) Not later than 8 weeks after the end of an accounting period, the debtor (subject to subsection (5) below) or any creditor may appeal to the sheriff against the determination of the Accountant in Bankruptcy; and the decision of the sheriff on such an appeal shall be final.
(5) A debtor may appeal under subsection (4) above if, and only if, he satisfies the sheriff that he has, or is likely to have, a pecuniary interest in the outcome of the appeal.
(6) Before—
(a) a debtor; or
(b) any creditor,
appeals under subsection (4) above, he must give notice to the Accountant in Bankruptcy of his intention to appeal.
(7) On the expiry of the period within which an appeal may be made under subsection (4) above, the Accountant in Bankruptcy shall pay to the creditors their dividends in accordance with the scheme of division.”.
(3) In subsection (10) for the words “the audited” there shall be substituted the word “his”.”.
47 In section 55, subsection (3) (references to a fine or penalty to include a confiscation order), as inserted by paragraph 15(5) of Schedule 11 to the Proceeds of Crime Act 2002 (c. 29), is renumbered as subsection (2A).
48 The italic cross-heading preceding section 57 becomes “Discharge of trustee”.
49 The heading to section 57 becomes “Discharge of trustee”.
50 In section 58A(7) (discharge of Accountant in Bankruptcy), after “sequestration” insert “including, where the Accountant in Bankruptcy was the interim trustee, the functions of the interim trustee”.
51 In section 59A(1) (petition for conversion into sequestration), for “court”, where it first occurs, substitute “sheriff”.
52 In section 59B(1)(c) (contents of affidavit), for “court”, in both places where it occurs, substitute “sheriff”.
53 In section 59C (power of court)—
(a) for “court”, in each place where it occurs, substitute “sheriff”;
(b) in subsection (1), for “it” substitute “he”; and
(c) the heading to that section becomes “Power of sheriff”.
54 In section 60B(2) (trustee to give notice or provide copies of documents to member State liquidator)—
(a) for “or a permanent” substitute “trustee or a”; and
(b) for “court”, where it second occurs, substitute “sheriff”.
55 In section 61 (extortionate credit transactions), for “court”, in both places where it occurs, substitute “sheriff”.
56 The heading to section 64 becomes “Debtor to co-operate with trustee”.
57 In section 65(1) (arbitration and compromise), for “court” substitute “sheriff”.
58 The heading to section 69 becomes “Outlays of insolvency practitioner in actings as interim trustee or trustee”.
59 In section 70(1)(a) (supplies by utilities), for “the petition was presented by the debtor” substitute “a debtor application was made”.
60 (1) Section 73 (interpretation) is amended as follows.
(2) In subsection (1)—
(a) after the definition of “associate”, insert—
““bankruptcy restrictions order” has the meaning given by section 56A(1) of this Act;
““bankruptcy restrictions undertaking” has the meaning given by section 56G(1) of this Act;”;
(b) after the definition of “debtor”, insert—
““debtor application” means an application for sequestration made to the Accountant in Bankruptcy under sections 5(2)(a) or 6(3)(a), (4)(a) or (6)(a) of this Act;”;
(c) after the definition of “the EC regulation”, insert—
““enactment” includes an Act of the Scottish Parliament and any enactment comprised in subordinate legislation under such an Act;”;
(d) in the definition of “interim trustee”, for “2” substitute “2(5)”;
(e) after the definition of “ordinary debt”, insert—
““original trustee” shall be construed in accordance with section 24(1)(a) of this Act;”;
(f) after the definition of “relevant person”, insert—
““replacement trustee” shall be construed in accordance with section 24(1)(b) of this Act;”;
(g) after the definition of “sederunt book”, insert—
““sequestration proceedings” includes a debtor application and analogous expressions shall be construed accordingly;”; and
(h) after the definition of “trust deed”, insert—
““trustee” means trustee in the sequestration;
“trustee vote” shall be construed in accordance with section 24(1) of this Act;”.
(3) In subsection (5)(b), for “such a petition” substitute “a debtor application”.
(4) In subsection (6), for “clerk of the court” substitute “sheriff clerk”.
(5) After subsection (6), insert—
“(6A) Any reference in this Act, howsoever expressed, to the time when a debtor application is made shall be construed as a reference to the time when the application is received by the Accountant in Bankruptcy.”.
61 In Schedule 6 (meetings of creditors and commissioners)—
(a) for “court”, in each place where it occurs, substitute “sheriff”; and
(b) in paragraph 15(1), for “shall”, in both places where it occurs, substitute “may”.
62 In Part II of Schedule 7 (re-enactment of certain provisions of the Bankruptcy (Scotland) Act 1913), in paragraph 24(5), for “(5)” substitute “(4)”.
Bankruptcy and Diligence etc (Scotland) Act 2007