Bankruptcy (Scotland) Act 1985 (repealed)

29 [F1 Removal of trustee and trustee not acting] S

(1) The F2 . . . 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 F2 . . . trustee; or

[F3 (b) by order made by the Accountant in Bankruptcy, if the Accountant in Bankruptcy is satisfied that there are reasons to do so on the basis of circumstances other than those mentioned in subsection (9),]

[F4 (1A) An order removing a trustee in accordance with subsection (1)(b) may be made—

(a) on the application of—

(i) the commissioners, or

(ii) a person representing not less than one quarter in value of the creditors, or

(b) in any other case, where the Accountant in Bankruptcy is satisfied that there are reasons to do so on the basis of circumstances other than those mentioned in subsection (9).]

[F5 (2) The Accountant in Bankruptcy must—

(a) order an application by a person mentioned in subsection (1A)(a) to be served on the trustee,

(b) enter particulars of the application in the register of insolvencies, and

(c) before deciding whether or not to make an order under subsection (1)(b), give the trustee the opportunity to make representations.]

[F6 (3) The Accountant in Bankruptcy may in ordering, or instead of ordering, the removal of the trustee from office under subsection (1)(b), make such further or other order as the Accountant in Bankruptcy thinks fit.

(3A) The trustee, the commissioners or any creditor may apply to the Accountant in Bankruptcy for a review of any decision of the Accountant in Bankruptcy under subsection (1)(b) or (3).

(3B) An application under subsection (3A) must be made before the expiry of the period of 14 days beginning with the day on which the decision is given.

(3C) If an application for a review under subsection (3A) is made, the Accountant in Bankruptcy must—

(a) take into account any representations made by an interested person before the expiry of the period of 21 days beginning with the day on which the application is made, and

(b) confirm, amend or revoke the decision before the expiry of the period of 28 days beginning with the day on which the application is made.]

[F7 (4) The trustee, the commissioners or any creditor may appeal to the sheriff against any decision of the Accountant in Bankruptcy under subsection (3C)(b) before the end of the period of 14 days beginning with the date of the decision.]

(5) If the F2 . . . trustee has been removed from office under subsection (1)(b) above or under section [F8 1A(2)] of this Act or following [F9 a review under subsection (3A) or] 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 F2 . . . trustee.

[F10 (6) If the Accountant in Bankruptcy is satisfied that any of the circumstances mentioned in subsection (9) apply, the Accountant in Bankruptcy may—

(a) declare the office of trustee to have become or to be vacant, and

(b) make any necessary order to enable the sequestration of the estate to proceed or to safeguard the estate pending the election of a new trustee.

(6A) The declaration of the office of trustee as vacant and any necessary order in accordance with subsection (6) may be made—

(a) on the application of—

(i) the commissioners,

(ii) the debtor, or

(iii) a creditor, or

(b) in any other case, where the Accountant in Bankruptcy is satisfied that there are reasons to do so on the basis of the circumstances mentioned in subsection (9).

(6B) The Accountant in Bankruptcy must order such intimation of an application by a person mentioned in subsection (6A)(a) as the Accountant in Bankruptcy considers necessary.

(6C) If the Accountant in Bankruptcy makes a declaration under subsection (6A), the commissioners, or if there are no commissioners the Accountant in Bankruptcy, must call a meeting of creditors for the election of a new trustee by the creditors.

(6D) A meeting called under subsection (6C) must be held before the end of the period of 28 days beginning with the date of the declaration under subsection (6A).

(6E) The trustee, the debtor, the commissioners or any creditor may apply to the Accountant in Bankruptcy for a review of any declaration or any order made by the Accountant in Bankruptcy under subsection (6).

(6F) An application under subsection (6E) must be made before the expiry of the period of 14 days beginning with the day on which the declaration is made.

(6G) If an application for a review under subsection (6E) is made, the Accountant in Bankruptcy must—

(a) take into account any representations made by an interested person before the expiry of the period of 21 days beginning with the day on which the application is made, and

(b) confirm, amend or revoke the declaration or order before the expiry of the period of 28 days beginning with the day on which the application is made.

(6H) The trustee, the debtor, the commissioners or any creditor may appeal to the sheriff against any decision of the Accountant in Bankruptcy under subsection (6G)(b) before the end of the period of 14 days beginning with the date of the decision.

(6I) The Accountant in Bankruptcy may refer a case to the sheriff for a direction before—

(a) making any order under subsection (1)(b) or (3),

(b) making any declaration or any order under subsection (6), or

(c) undertaking any review under this section.

(6J) An application for a review under subsection (3A) or (6E) may not be made in relation to a matter on which the Accountant in Bankruptcy has applied to the sheriff for a direction under subsection (6I).]

(7) The foregoing provisions of this Act relating to the election [F11 of a replacement trustee and the appointment of that]F2 . . . trustee shall, subject to any necessary modifications, apply in relation to the election and [F12 appointment] of a new F2 . . . trustee in pursuance of subsection (5) or [F13 (6C)] above.

(8) Subsections (5) to [F14 (8)] 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 F2 . . . 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.

[F15 (10) This section does not apply in any case where the Accountant in Bankruptcy is the trustee [F16 and is without prejudice to the powers under section 1A(2)] .]

Textual Amendments

F1 S. 29 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), {Sch, 1 para. 29(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))

F2 Words in s. 29 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))

F3 S. 29(1)(b) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(a), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F4 S. 29(1A) inserted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(b), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F5 S. 29(2) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(c), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F6 S. 29(3)-(3C) substituted for s. 29(3) (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(d), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F7 S. 29(4) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(e), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F8 Words in s. 29(1)(b)(5)(6) 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.18 (with s. 12(6)); S.I. 1993/438, art.3

F9 Words in s. 29(5) inserted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(f), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F10 S. 29(6)-(6J) substituted for s. 29(6) (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(g), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F11 Words in s. 29(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 29(2)(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))

F12 Word in s. 29(7) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), {Sch, 1 para. 29(2)(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))

F13 Word in s. 29(7) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(h), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F14 Word in s. 29(8) substituted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), s. 57(2), sch. 3 para. 19; S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)

F15 S. 29(10) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), {Sch, 1 para. 29(3)} (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))

F16 Words in s. 29(10) inserted (1.4.2015) by Bankruptcy and Debt Advice (Scotland) Act 2014 (asp 11), ss. 30(i), 57(2); S.S.I. 2014/261, art. 3 (with arts. 4-7, 12) (as amended by S.S.I. 2015/54, art. 2)