Textual Amendments
F1Cross-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))
[F3(1)The F4. . . trustee may apply to the [F5Accountant in Bankruptcy] for authority to resign office and, where the [F5Accountant in Bankruptcy] is satisfied that [F6 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)The [F5Accountant in Bankruptcy] may make the granting of an application under subsection (1) above subject to the election of a new F4. . . trustee and to such conditions as he thinks appropriate in all the circumstances of the case.]
(2)Where the [F5Accountant in Bankruptcy] grants an application under F7. . . subsection (1) above—
(a)except where paragraph (b) below applies, the commissioners, or if there are no commissioners, the Accountant in Bankruptcy, shall call a meeting of the creditors, to be held not more than 28 days after the F4. . . trustee has resigned, for the election by them of a new F4. . . trustee;
(b)if the application has been granted subject to the election of a new F4. . . trustee, the resigning F4. . . trustee shall himself call a meeting of the creditors, to be held not more than 28 days after the granting of the application, for the purpose referred to in paragraph (a) above.
(3)Where the commissioners become, or if there are no commissioners the Accountant in Bankruptcy becomes, aware that the F4. . . 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 F4. . . trustee.
(4)The foregoing provisions of this Act relating to the election [F8of a replacement trustee and the appointment of that]F4. . . trustee shall, subject to any necessary modifications, apply in relation to the election and [F9appointment] of a new F4. . . trustee in pursuance of subsection (1), [F10(1A),] (2) or (3) above.
[F11(5)Where no new F4. . . trustee is elected in pursuance of subsection (2) or (3) above
[F12(a)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 F4. . . 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 F4. . . 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.
[F10(8)The decision of the sheriff on an appeal under subsection (7) above shall be final.]
Textual Amendments
F2S. 28 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(5) (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))
F3S. 28(1)(1A) substituted for s. 28(1) (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(2) (with s. 12(6)); S.I. 1993/438, art.3
F4Words in s. 28 repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 226, 227(3), Sch. 6 Pt. 1 (with s. 223); S.S.I. 2008/115, art. 3(2)(3), Sch. 2 (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F5Words in s. 28(1)(1A)(2) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), Sch. 1 para. 28(2) (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))
F6Words in s. 28(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), s. 9(2), 227(3), (with s. 223); S.S.I. 2008/115, art. 3(1)(a) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))
F7Words in s. 28(2) repealed (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(4), Sch.2 (with s. 12(6)); S.I. 1993/438, art.3
F8Words in s. 28(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(3)(a) (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))
F9Word in s. 28(4) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(3)(b) (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))
F10Word in s. 28(4) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(3) (with s. 12(6)); S.I. 1993/438, art.3
S. 28(8) inserted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(5) (with s. 12(6)); S.I. 1993/438, art.3
F11S. 28(5) substituted (1.4.1993, subject to savings in arts. 4, 5 of S.I. 1993/438) by 1993 c. 6, s. 11(3), Sch. 1 para. 17(4) (with s. 12(6)); S.I. 1993/438, art.3
F12Words in s. 28(5) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 28(4) (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))