F18Replacement of trustee
28F1Resignation and death of trustee
F21
The F3. . . trustee may apply to the F4Accountant in Bankruptcy for authority to resign office and, where the F4Accountant in Bankruptcy is satisfied that F5 the trustee—
a
is unable to act (whether by, under or by virtue of a provision of this Act or from any other cause whatsoever); or
b
has so conducted himself that he should no longer continue to act,
the Accountant in Bankruptcy shall grant the application.
1A
2
a
3
Where the commissioners become, or if there are no commissioners the Accountant in Bankruptcy becomes, aware that the F3. . . trustee has died, they or as the case may be the Accountant in Bankruptcy shall as soon as practicable after becoming so aware call a meeting of creditors for the election by the creditors of a new F3. . . trustee.
4
The foregoing provisions of this Act relating to the election F7of a replacement trustee and the appointment of thatF3. . . trustee shall, subject to any necessary modifications, apply in relation to the election and F8appointment of a new F3. . . trustee in pursuance of subsection (1), F9(1A), (2) or (3) above.
F105
Where no new F3. . . trustee is elected in pursuance of subsection (2) or (3) above
F11a
the Accountant in Bankruptcy; or
b
such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as replacement trustee under section 24(2) of this Act) if that person consents to the nomination,
may apply to the sheriff for appointment as trustee in the sequestration; and, on such application, the sheriff shall make an order so appointing the Accountant in Bankruptcy or, as the case may be, the person nominated by him.
6
The new F3. . . trustee may require—
a
delivery to him of all documents relating to the sequestration in the possession of the former trustee or his representatives, except the former trustee’s accounts of which he shall be entitled to delivery of only a copy;
b
the former trustee or his representatives to submit the trustee’s accounts for audit to the commissioners or, if there are no commissioners, to the Accountant in Bankruptcy, and the commissioners or the Accountant in Bankruptcy shall issue a determination fixing the amount of the outlays and remuneration payable to the trustee or representatives in accordance with section 53 of this Act.
7
The former trustee or his representatives, the new F3. . . trustee, the debtor or any creditor may appeal against a determination issued under subsection (6)(b) above within 14 days after it is issued—
a
where it is a determination of the commissioners, to the Accountant in Bankruptcy; and
b
where it is a determination of the Accountant in Bankruptcy, to the sheriff;
and the determination of the Accountant in Bankruptcy under paragraph (a) above shall be appealable to the sheriff.
F98
The decision of the sheriff on an appeal under subsection (7) above shall be final.
28AF19Replacement of trustee acting in more than one sequestration
1
This section applies where a trustee acting as such in two or more sequestrations—
a
dies; or
b
ceases to be qualified to continue to act as trustee by virtue of section 24(2) of this Act.
2
The Accountant in Bankruptcy may, by a single petition to the Court of Session, apply—
a
in a case where subsection (1)(b) above applies, for the removal of the trustee from office in each sequestration in which he has so ceased to be qualified; and
b
for the appointment of—
i
the Accountant in Bankruptcy; or
ii
such person as may be nominated by the Accountant in Bankruptcy (being a person who is not ineligible for election as replacement trustee under section 24(2) of this Act) if that person consents to the nomination,
as the trustee in each sequestration in which the trustee was acting.
3
The procedure in a petition under subsection (2) above shall be as the Court of Session may, by act of sederunt, prescribe.
4
An act of sederunt made under subsection (3) above may, in particular, make provision as to the intimation to each sheriff who awarded sequestration or to whom sequestration was transferred under section 15(2) of this Act of the appointment by the Court of Session of a trustee in that sequestration.
29F12Removal of trustee and trustee not acting
1
The F13. . . trustee may be removed from office—
a
by the creditors (other than any such person as is mentioned in section 24(3) of this Act) at a meeting called for the purpose if they also elect forthwith a new F13. . . trustee; or
b
without prejudice to section F141A(2) of this Act, by order of the sheriff, on the application of—
i
the Accountant in Bankruptcy;
ii
the commissioners; or
iii
a person representing not less than one quarter in value of the creditors,
if the sheriff is satisfied that cause has been shown on the basis of circumstances other than those to which subsection (9) below applies.
2
3
4
The F13. . . trustee, the Accountant in Bankruptcy, the commissioners or any creditor may appeal against the decision of the sheriff on an application under subsection (1)(b) above within 14 days after the date of that decision.
5
If the F13. . . trustee has been removed from office under subsection (1)(b) above or under section F141A(2) of this Act or following an appeal under subsection (4) above, the commissioners or, if there are no commissioners, the Accountant in Bankruptcy shall call a meeting of creditors, to be held not more than 28 days after such removal, for the election by them of a new F13. . . trustee.
6
Without prejudice to section F141A(2) of this Act, where the sheriff is satisfied of any of the circumstances to which subsection (9) below applies he may, on the application of a commissioner, the debtor, a creditor or the Accountant in Bankruptcy, and after such intimation as the sheriff considers necessary—
a
declare the office of F13. . . trustee to have become or to be vacant; and
b
make any necessary order to enable the sequestration to proceed or to safeguard the estate pending the election of a new F13. . . trustee;
and thereafter the commissioners or, if there are no commissioners, the Accountant in Bankruptcy shall call a meeting of creditors, to be held not more than 28 days after such declaration, for the election by them of a new F13. . . trustee.
7
The foregoing provisions of this Act relating to the election F15of a replacement trustee and the appointment of thatF13. . . trustee shall, subject to any necessary modifications, apply in relation to the election and F16appointment of a new F13. . . trustee in pursuance of subsection (5) or (6) above.
8
Subsections (5) to (7) of section 28 of this Act shall apply for the purposes of this section as they apply for the purposes of that section.
9
The circumstances to which this subsection applies are that the F13. . . trustee—
a
is unable to act (whether by, under or by virtue of a provision of this Act or from any other cause whatsoever other than death); or
b
has so conducted himself that he should no longer continue to act in the sequestration.
F1710
This section does not apply in any case where the Accountant in Bankruptcy is the trustee.
Cross-heading preceding s. 28 substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(6) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))