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Notes for Guidance - Bankruptcy (Scotland) Act 2016 (as amended)

This guidance describes the general functions of Accountant in Bankruptcy, interim trustees, trustees and commissioners in relation to their responsibilities regarding bankruptcies which started on or after 30 November 2016.

5.4 Removal of a trustee other than when unable to act

A trustee may be removed from office:

  • by the creditors at a meeting called for that purpose
  • by order of the Accountant, if the Accountant is satisfied, on the basis of circumstances, there are reasons to remove the trustee from office

5.4.1 Meeting of creditors

A meeting called for this for this purpose would be convened in accordance with Schedule 6, Part 1 of the Act (see section 18.5).

Within 14 days of the meeting the trustee should upload to BASYS a copy of the following documents:

  • the letter issued to convene the meeting (to be placed in the electronic Sederunt Book)
  • the minutes, signed by the person who chaired the meeting, with the attendance sheet (to be placed in the electronic Sederunt Book)
  • when a new trustee has been elected a copy of their consent to act

When a replacement trustee is elected the Accountant and the previous trustee will follow the procedure at section 5.1.

5.4.2 By order of the Accountant

The Accountant can also issue an order, without an application, when they are satisfied there are reasons for the trustee to be removed.

An order may also be made on the application of:

  • the commissioner(s)
  • a person representing not less than one quarter in value of the creditors

The application should be made on a Form 1 of the Applications and Decisions Regulations.

The TS team will :

  • record the particulars of the application on the Register of Insolvencies
  • order the application to be served on the trustee
  • allow the trustee 21 days from the date on which the copy application is served to make representations

The Accountant will:

  • within 14 days of the end of the representation period decide whether to remove the trustee, or make any other order under section 70(1)(b) or 70(5) of the Act
  • when appropriate issue a Form 5 of the Applications and Decisions Regulations declaring the position of trustee vacant and a meeting of creditors must be held for the election of a new trustee
  • the meeting should be held in accordance with Schedule 6, Part 1 of the Act and the trustee should follow the procedure as shown at section 5

5.4.3 Removal of the trustee other than unable to act - review and appeal

When the replacement was made at a meeting of creditors an appeal can be made by the trustee, a creditor or any other person have an interest to the sheriff within 14 days after the date of the meeting.

When the removal is made by virtue of an Order by the Accountant an application can be made by the trustee, the commissioner or any creditor to the Accountant’s independent review team for a review of a decision made by the Accountant to:

  • make the order
  • make any such further, or other order, as they thinks fit in accordance with section 70(5) of the Act

An application must be received before the expiry of 14 days from the date the order was notified by the Accountant.

The team must take into consideration any submissions made by the applicant and any interested person before the expiry of 21 days from the date the application.

The outcome of the review to confirm, revoke or amend the decision, determination or requirement must be made before the expiry of 28 days from the date the application for review was made.

Any person entitled to request a review may appeal the review decision to the sheriff before the expiry of 14 days from the date the review decision, determination or requirement was made. The sheriff’s decision is final.

For guidance on uploading to BASYS, please refer to the BASYS user guide - AST

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