Scottish Sheriff Court Decisions

Sheriffdom of Grampian Highland and Islands at Peterhead

 

 

Judgement of Sheriff Gregor Murray

 

In causa

 

Petition of

 

GORDON ALASTAIR MILNE, residing at Bodychell, Memsie, Fraserburgh, Aberdeenshire

 

PETITIONER

 

For Recall of His Sequestration

 

 

 

Peterhead, 14^th May 2012

 

Act :- Party

 

Alt:-:- (1) Gibb (for Trustee)

 

(2) Roxburgh (for Bank of Scotland)

 

The Sheriff, having resumed consideration of the cause, refuses the Petition; finds the Petitioner liable in expenses to each of the First and Second Respondents as the same may subsequently be taxed; refuses the First and Second Respondents' motions to receive Affidavit evidence as unnecessary; appoints the First Defender's Note No. of Process to the roll of 8^th June 2012 to fix a suitable date for determination thereof.

 

 

 

 

Gregor K Murray

Sheriff

 

 

 

 

 

NOTE

 

(1) In this case, the Petitioner seeks recall of an award of sequestration of his estates pronounced in this court on 13^th October 2011.

 

(2) The Petitioner's sequestration followed service on him of two Charges by the Bank of Scotland in terms of two Personal Guarantees he had granted in favour of the Bank for the indebtedness of limited companies. The Guarantees were subsequently registered in the Books of Council and Session. The Charges expired without payment. The sum due by the Petitioner in terms of both charges exceeded £3,000,000.

 

The sequestration process was protracted, including several continuations and an appeal by the Bank to the Sheriff Principal. This meant there was a ten month gap between the date of the initiating warrant and the award of sequestration. The Date of Sequestration for the purposes of the Bankruptcy (Scotland) Act 1985 as amended ("the Act") is 30^th October 2010.

 

 

(3)   The Recall Petition was intimated inter alia on the Petitioner's Trustee John Montague ("the First Respondent") and the Bank ("the Second Respondents"). Both lodged Answers. After sundry procedure including adjustment, the case came before me for a final hearing on 24^th April 2012.

 

(4)   At the hearing, the Petitioner represented himself. The First Respondent was represented by Mr Gibb, Solicitor and the Second Respondent by Miss Roxburgh, Solicitor. All parties, following preliminary hearings, lodged written arguments and lists of authorities in advance. I am grateful to them for doing so.

 

 

(5)   Agreement was reached at the preliminary hearing that the Second Respondent's arguments would be heard first without evidence being led. The First Respondent adopted the Second Respondent's arguments. I then heard the Petitioner in response and in relation to his arguments. As the hearing developed, it became clear there were no relevant disputed factual issues, meaning continued motions by both Respondents to have their evidence led by Affidavit have been superseded, allowing final determination of the case.

 

 

(6)   On the same date, a Note called in the Sequestration Process at the instance of the Second Respondent seeking Deferral of the Petitioner's Discharge. Of consent, I continued consideration of the Note pending this decision.

 

 

The Second Respondent's Arguments

 

 

(7)   Miss Roxburgh submitted the Petition should be refused with expenses. She accepted the Petition had been competently presented by the Petitioner in terms of s.16(1) of the Act and that s.17(1) conferred a wide discretion on the Sheriff determining the issue of recall. However, as paragraph 8.3 of the 1982 Scottish Law Commission Report on the Law of Bankruptcy preceding the Act showed, the purpose of the discretion was to amend the previous law that any defect in the sequestration process automatically led to recall. Therefore, she argued, anything which occurred before sequestration in this case ought to have been challenged at that time - see e.g. MacBryde on Bankruptcy at para 3-26.

 

 

(8)   Miss Roxburgh submitted the Second Respondents had fulfilled all necessary statutory requirements before sequestration was awarded. They were competent creditors as defined by s.12(2) and qualifying creditors as defined by ss.5(2) and (4). The Petitioner became apparently insolvent as defined by ss.5(2D) and 7(1)(c) after expiry of the Charges. Debt information packages were served on him. The sequestration petition had been accompanied by a Creditor's Oath in terms of s.11. Finally, by virtue of ss.12(3) and (3A) the Sheriff was deemed to have been satisfied on a number of specified issues when awarding sequestration.

 

 

(9)   Consequently, Miss Roxburgh submitted a number of the Petitioner's arguments were fundamentally irrelevant, in particular:-

 

a.      the Charges were incompetent and/or incompetently served. The Charges here were ex facie probative. They could only be challenged by Reduction (Inland Revenue v Gibb 1963 SLT (Notes) 66). The Petitioner had not attempted to reduce either the Extract Guarantees or the Charges.

 

b.      the Charges ought to have been accompanied by Certificates of Indebtedness. Miss Roxburgh submitted there was no legal requirement for this (Ross, Petitioner (2009) CSOH 33 at 34, McLaughlin, Petitioner (2010) CSIH 24 at paras 7 to 12); in any case, the Sheriff Officers' Execution of Service showed the Certificates had been served. Finally, there was no contractual provision in either Guarantee to that effect.

 

c.      the Petitioner was not apparently insolvent when the Petition was presented Miss Roxburgh submitted it was clear from the law and documentation that the Petitioner was apparently insolvent.(Ross, op cit at 34 and MacBryde at paras 3-21 and 4-64)

 

d.      the Second Respondents were not qualifying Creditors of the Petitioner. Miss Roxburgh submitted the Creditor's Oath, copy Guarantees and Charges were prima facie evidence of the Petitioner's debt (Lord Advocate v Thomson (1995) SLT 56 at 61). In any case, during the sequestration process, the Petitioner had accepted sums were due to the Bank - he argued then he was offering or had given sufficient security for those sums. It followed the Second Respondents were qualifying creditors as defined by the Act.

 

e.      sufficient security had been given or offered. Miss Roxburgh submitted this issue had been correctly determined by the Sheriff when sequestration had been awarded. s.12 of the Act mandated an award of sequestration as the Sheriff had not been satisfied there was sufficient security at the relevant time (National Westminster Bank v W.K. Elrick & Co (1911) SLT 709 at 713L and Advocate General v Zaoui (2001) SC 448 at para 19)

 

f.        sequestration should not have been awarded as the Petitioner had already intimated an intention to apply to the Debt Arrangement Scheme ("DAS") Administrator to be admitted to DAS Miss Roxburgh submitted s.12(3C) of the Act conferred a discretion on the Sheriff on whether to award sequestration. In the circumstances of this case, the prohibition in Regulation 30(1) of the DAS (Scotland) Regulations 2011/141 applied only to diligence measures, not sequestration.

 

(10)                Accordingly, in the absence of averments suggesting the Petitioner's debts had been or would be paid, or relevant averments that he had given security for their payment, Miss Roxburgh submitted there were no circumstances pled which would entitle me to grant recall.

 

The First Respondent's Arguments

 

(11)                Mr Gibb adopted the Second Respondent's arguments. However, if I granted recall, he sought provision for the Trustee's fees and outlays being paid as a pre-condition, in terms of s.17(a) of the Act. It was appropriate for the Trustee to take this approach (Crawford's Trustee v Crawford (2002) SC 464)

 

The Petitioner's Arguments

 

(12)                The Petitioner advanced many arguments. Most are outlined in his written Note of Argument, which in turn refers to others in his pleadings and productions. Although he only referred to some in submissions, he confirmed he continued to rely on all of them.

 

(13)                As I must take account of all the circumstances in the exercise of my discretion and the Petitioner is a party litigant, I think it is appropriate to record those arguments in full, with details of their location:-

 

a.      The Bank did not provide facilities to either limited company as they contracted to do (Article 4 of Condescendence)

 

b.      The Charges were ambiguous as they were not accompanied by Certificates of Indebtedness in terms of the Guarantees (ibid and oral submissions)

 

c.      The purported Certificates of Indebtedness dated 21/7/09 were fraudulently signed by an officer of the Bank (ibid and oral submissions)

d.      The Bank fraudulently created the Guarantees from documents the Petitioner signed (ibid )

 

e.      The Charges were not validly served or executed as they were not served on a legal entity namely "Gordon Milne, Director of Bodychell" (ibid and oral submissions)

 

f.        If the Charges were valid, they did not specify who should pay the sums demanded (ibid and oral submissions)

 

g.      The Certificates of Indebtedness should have been registered in the Books of Council and Session along with the Guarantees in terms of Clauses 15.6 and 18 of the Guarantees (ibid, pp5-6 of the Record and oral submissions)

 

h.      As the banking facilities were never provided, the Certificates of Indebtedness and Demand Letter were fraudulently signed by the Bank (ibid, p8 of the Record)

 

i.        Any obligation under the Guarantees has expired (ibid, p8 of the Record)

 

j.         The Bank are personally barred from enforcing the Guarantees regardless of fraud as the Petitioner only signed the Guarantees on condition that banking facilities to the companies were to be provided (ibid, p8 of the Record)

 

k.      The sequestration petition was incompetent as it did not disclose the true extent of any sums due by the Petitioner - in that event, he would have been able to demonstrate the Bank had sufficient security for that amount (Article 5, p12 of the Record)

 

l.         The Creditor's Oath which accompanied the Petition was incompetent as it did not make clear whether the security referred to in it was one or three securities (Article 6, p13 of the Record)

 

m.    The Award of Sequestration was not in the interests of the general body of creditors and has severely prejudiced the Petitioner (Article 8 , pp15-17 of the Record)

 

n.      As the Trustee has not called a meeting of creditors and has implied there will be no dividend to creditors he has acted in such a way so as to prevent the Petitioner from making a composition offer (ibid and oral submissions)

 

o.      The effect of the Petitioner applying to be admitted to DAS under reference DAS/2011/650 has rendered the sequestration process irregular, impractical and incurable (Article 9, p18 of the Record)

 

p.      The award of sequestration was erroneous as the Petitioner was on the DAS Register on 13/10/11, contrary to Regulation 30(1)(a) of the DAS (Scotland) Regulations 2011 (ibid, pp18-22 of the Record and oral submissions)

 

q.      The Trustee prejudiced the Petitioner and the creditors by advising the Bank to proceed with sequestration and not to accept the DAS application (Article 10, pp23-25 of the Record and oral submissions)

 

r.        The Bank reneged on a promise to the Petitioner's MP Eilidh Whiteford not to proceed with the Petition until an appeal to the DAS Administrator had been finalised (Article 12, p30 of the Record)

 

s.      The Bank had "spliced and diced" (and thereby doubled) the debt by construing the Guarantees as two separate documents instead of as a stand alone indemnity (Article 13, p32 of the Record and oral submissions)

 

t.        The Petitioner's solicitor, Douglas Burnett, did not provide him with independent legal advice as he had a conflict of interest (ibid, pp43-47 of Record and oral submissions)

 

u.      The Bank intended to use the Petitioner's security as a collateralised debt obligation (oral submissions)

 

v.       The separate and/or cumulative effect of the incompetency, irregularity and fraud of the Guarantees, Charges, sequestration petition, Creditor's Oath and the extrinsic facts surrounding those documents was an error in law justifying Recall (Note of Argument, para 2 and oral submissions)

 

w.     The Personal Guarantees are not debts which can be discharged/extinguished and were created fraudulently, which can be seen either from their terms or from the circumstances surrounding their signature and execution. (ibid, para 3 and oral submissions)

 

x.       By adopting the Second Respondent's arguments at the final hearing, the First Respondent was attempting to boost his fees (oral submissions)

 

y.       The court should attach no weight to the Creditor's Oath in a case such as this where the original documents were fraudulently created (oral submissions)

 

(14) As some of the Petitioner's arguments were mutually inconsistent and/or interrelated, during the final hearing I managed to clarify his position on these and some related facts with him as follows:-

 

                                                              i.      The Petitioner admitted he had signed both Personal Guarantees.

 

                                                            ii.      He admitted he had taken legal advice from a solicitor, Douglas Burnett, before he signed the Personal Guarantees.

 

                                                          iii.      He advised me Receivers had been appointed to both limited companies mentioned in the Personal Guarantees before they were enforced.

 

                                                           iv.      He accepted both Personal Guarantees had been registered in the Books of Council and Session.

 

                                                             v.      He admitted the Charges relied on by the Second Respondents had been served on him. However, he did not accept Certificates of Indebtedness had accompanied them.

 

                                                           vi.      He admitted he had been served with the sequestration petition and accompanying documents.

 

                                                         vii.      He accepted he had not been admitted to the DAS Scheme. He had applied to be admitted some time before, through an Accredited Money Adviser. His application had been rejected, which led to an appeal. The DAS Administrator had not determined the appeal but had permitted him to apply again. By the date sequestration was awarded, he had intimated an intention to re-apply to the Scheme.

 

                                                       viii.      While sums were due by each limited company to the Bank, the Bank held Standard Securities. As such, he expected the Bank would be repaid from the secured subjects being sold.

 

                                                           ix.      He did not dispute the documents lodged in court were true copies of the originals.

 

 

Discussion

 

(15) The recall Petition was presented within 10 weeks of the award of sequestration. To exercise the discretion conferred on me by s.17(1) of the Act, I must "be satisfied that in all the circumstances of the case (including those arising after the date of sequestration) it is appropriate to do so. Although the specific criteria in s.17(1)(a) - (c) could also be relevant factors, none are here and I have not considered them further.

 

(16) The Petitioner's arguments can be summarised in three parts. First, he argues the Second Respondents incorrectly followed procedures from before signature of the Guarantees until the petition for sequestration was served. As such, he argued he was not given independent advice before he signed the Guarantees, procedures for enforcing them were not followed, Sheriff Officers served the Charges either on the wrong person or on a legal persona which did not exist and the Charges were not accompanied by Certificates of Indebtedness. Finally, he argues the Creditor's Oath lodged with the sequestration petition was tainted by the errors outlined in the preceding paragraph.

 

(17) The Petitioner's secondly argues about the court's decision to award sequestration against a background of him having twice intimated an intention to be admitted to the DAS scheme and that he was able to demonstrate sufficient security for the debt.

(18) The Petitioner finally attacks the Trustee's conduct before and after the award. He argues the First Respondent colluded with the Second Respondents to prevent his admission to the DAS Scheme, then prejudiced him by providing information to creditors which meant there was no prospect of a dividend being paid and/or him making a composition offer.

 

(19) These are all ex facie relevant issues for me to consider in the exercise of my discretion. However, for the reasons which follow, I find them to be either irrelevant or contrary to the undisputed facts.

 

(20) It is simplest to start with the Personal Guarantees. Copies are lodged in the Second Respondent's First Inventory. They are identical save for the amount guaranteed and the identity of the borrowing company. Each is a contract between the Petitioner and Second Respondents, admittedly signed by both. Though not referred to in the body of the Guarantees, Solicitor's Certificates are attached to each. These record the Petitioner received legal advice from a legal firm (which is stated to have no conflict of interest) on, inter alia, the "nature and implications of the Guarantee...the risks of entering into the Guarantee", that the Petitioner "confirmed that he...wished to proceed" and "appeared to understand (that) advice".

 

(21) The Guarantees record the parties' respective contractual obligations, where appropriate to be interpreted in accordance with Clause 17. In each, the Petitioner is described as "the Guarantor" and the Second Respondents as "BoS". Clause 1.1 narrates:- "In consideration of BoS granting time, credit and banking facilities to the Borrower, the Guarantor unconditionally and irrevocably guarantees the payment or discharge of the Secured Liabilities and shall on demand in writing repay or discharge them to BoS". Clause 17.1.1 defines the "Borrower" as being the relevant borrowing company in each case and Clause 17.1.8 defines "Secured Liabilities" as including "...all or any money...which shall from time to time (and whether on or at any time after demand) be due....to BoS by the Borrower..". Clause 1.7.1 limits the extent of the Guarantee to £2,600,000 in one case and £640,000 in the other.

 

(22) Further, Clause 7 records BoS need take no other action before enforcing the Guarantees nor advise the Guarantor of its dealings with or knowledge of the Borrower before doing so. Accordingly, for the Petitioner's obligations under each Guarantee to become extant, the Second Respondents required only to issue a "demand in writing" under Clause 1.1. Clauses 15.1 and 15.3 record that the written demand has to be addressed to the Petitioner's "existing or last known place of business or usual abode". The Guarantees make no provision for the form of written demand.

 

(23) Clause 18 permits registration of the Guarantees for preservation and execution. It was obviously competent for the Second Respondents to do diligence on deeds registered in the Books of Council and Session. It is not disputed the Second Respondents served Charges on the Petitioner on 15^th October 2010. Copies of the Charges and Executions of Service are produced as numbers 4 and 7 of the Second Respondent's First Inventory. The Petitioner argues he was not served with Certificates of Indebtedness and that Clause 15.6 obliged the Bank to do so. The Second Respondents dispute that and refer to a Demand Letter dated 21^st July 2009 (number 1 of their First Inventory) and the actual Certificates (numbers 3 and 6), which they say were served with the Charges. The Petitioner's attack on the content of the Creditor's Oath flows from the Bank's alleged failure to serve the Certificates.

 

(24) It is clear the Petitioner received legal advice and that advice was independent. His argument on that issue is clearly unfounded. Similarly, there is no question of "splicing and dicing". Clause 9 of each Guarantee makes specific provision to prevent that eventuality, aside from any other remedy the Petitioner might have against the Bank were that to occur.

 

(25) As the Inner House held in McLaughlin, Petitioner (2010) CSIH 24 at para 7, whether a formal certificate in such cases is required depends on the terms of the parties' agreement. In this case, the Bank needed only to make a demand in writing. It did so. First, the 2009 Demand Letter was sent. Second, Certificates may have accompanied the Charges, though that is factually disputed. Last, the Charges were served. Any of these constituted a written demand as defined in each Guarantee in my opinion. The Guarantees make no provision for Certificates being a prerequisite of enforcement. While they are mentioned in Clause 15.6, they do so only to clarify their status if the amount sought is disputed, as is commercially commonplace. The same principle explains the Certificates being mentioned in Clause 18. It follows the Petitioner's arguments on this and, consequently, the issue of the Creditor's Oath also fail. I note that in McLaughlin, the Inner House reached the same conclusion interpreting an almost identically worded guarantee.

 

(27) However, if I am wrong on these points, I also accept Miss Roxburgh's submission that I should take into account that the Petitioner's failure to take action earlier. The Petitioner had legal advice on the legal effect of the Guarantees before he signed them. He was on notice from July 2009 they were being enforced. Alternatively, that could not have escaped his notice at earliest when Receivers were appointed to the companies, at latest when the Charges were served. At no stage did he attempt to reduce the Charges or Guarantees. As MacBryde observes at para 3-26:- "It is best practice to challenge a claimed debt or obligation before presentation of a petition for sequestration". Finally in the overall exercise of my discretion, I think I must attach weight to the Sheriff Principal's decision to award sequestration, when these issues were or could have been argued by the Petitioner.

 

(28) I therefore turn to the Petitioner's arguments regarding the DAS Scheme and the court's decision to award sequestration.

 

As regards the DAS issue, s12(3C) of the Act provides, so far as relevant to this case:-

 

"(3C) Where the sheriff is satisfied -

 

(a) that a debt payment programme (within the meaning of Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)) relating to -

 

(i) the debt in respect of which the debtor became apparently insolvent; and

(ii) any other debt due by the debtor to the petitioner and any creditor concurring in the petition,

 

has been applied for and has not yet been approved or rejected...

 

the sheriff may continue the petition for such period as he thinks fit."

 

Regulations 19 and 30 of the Debt Arrangement Scheme (Scotland) Regulations 2011, so far as relevant to this case provide:-

 

"19 - Information on the DAS Register

 

(1) Information in respect of the matters relating to debt payment programmes specified in paragraph (2) is to be held on the DAS Register.

 

 

(2) The specified information is -

 

(a) an intimation of intention to apply under regulation 20(3)...

 

(3) The DAS Register is to include for each debtor who has given intimation under regulation 20(3), who has applied for approval of a debt payment programme, or who is taking part in a programme, a record of -

 

(a) the full name, including any former name;

 

(b) the date of birth;

 

(c) the home address or addresses, and any business address; and

 

(d) the business address of any continuing money adviser."

 

"30.- Diligence or sequestration in the period before a debt payment programme is approved

 

(1) It is not competent to serve a charge for payment in respect of, or to commence or execute any diligence to enforce payment of, any debt, or for a creditor to petition for sequestration -

 

(a) during the period of 6 weeks immediately following an intimation by the debtor being entered in the DAS Register under regulation 19(2)(a);

 

(b) during the period immediately following an application by the debtor being entered in that Register under regulation 19(2)(b) and ending on the earliest of the dates mentioned in paragraph (2); or

 

(c) during the period of 6 weeks immediately following revocation of a joint debt payment programme on the ground that conditions in regulation 22(1)(b) or (2) no longer apply.

(2) The dates mentioned in paragraph (1)(b) are -

 

(a) that on which a notice that the debt payment programme is approved is entered in the DAS Register;

 

(b) that on which notice of rejection of the debt payment programme, sent under regulation 29(1), is so entered; and

 

(c) that on which intimation of withdrawal of the application in respect of the debt payment programme, given under regulation 20(4), is so entered."

 

Accordingly, the cumulative effect of Regulations 19 and 30 is to prohibit creditors doing diligence against, or petitioning for sequestration of a debtor (a) in the 6 week period after a debtor intimates an intention to apply to be admitted to the scheme and (b) at any time after an application has been submitted, provided it is not thereafter refused or revoked by the DAS Administrator.

 

It is not disputed the Petitioner intimated an intention to be admitted to DAS on 5^th October 2011. Intimation of that was recorded on the DAS Register by the DAS Administrator (see number 5 of the Petitioner's Productions). The Petitioner advised me this followed an earlier rejected application for admission to DAS. However after appeal, the DAS Administrator permitted him to lodge a further application. Although he produced no evidence to confirm this, the Administrator clearly allowed the intimation of 5^th October 2011 to be recorded on the Register. As Regulation 20(3) provides that intimation of intention may only be made once in a 12 month period, I proceed on the basis that the September 2011 intimation was valid.

 

The issue is therefore whether s.12(3C) or Regulations 19 and 30 governed the petition for sequestration. Miss Roxburgh argued the former, the Petitioner the latter. I have no difficulty preferring the former. To hold otherwise would be to deny s.12(3C) any real purpose - otherwise, subject to the 12 month rule, a debtor could prevent sequestration in any case simply by intimating an intention to apply for DAS protection. The words "petition for sequestration" in Regulation 30(1) can only be interpreted as meaning "a creditor lodging a petition for sequestration". s.12(3C) is designed to cover examples of the instant case where intimation of the debtor's intention to apply to DAS is made after the sequestration petition has been lodged. Interpreted in that way, the indefinite continuation in s.12(3C) makes sense. It permits the Sheriff to consider every case on its merits - for example, a short continuation may be necessary to ascertain whether a DAS Application is then lodged after the intention is notified and to ascertain whether it is acceptable; a longer continuation may be necessary to monitor payment under an accepted DAS Application. The Petitioner's arguments that the DAS intimation rendered the award of sequestration incompetent are therefore irrelevant.

 

However, I accept the intimation on 5^th October is a factor I must consider in the overall exercise of my discretion, an issue I have dealt with below.

 

(29) As regards sufficient security and the sequestration petition procedure, it is sufficient to record that I prefer Miss Roxburgh's position. On the authority of the statutes and cases she cited, I agree the issues were for the presiding Sheriff. However, as it is an issue I must also consider in the exercise of my discretion, I have done so below.

 

(30) That leaves the Petitioner's arguments regarding his Trustee's conduct. These also have no merit and can be disposed of briefly. The contention that the First Respondent colluded with the Second Respondent to thwart the DAS Application results, I think, from the Petitioner misunderstanding the purpose of the consent letter the Trustee provided to the Bank before the sequestration petition was lodged. The Petitioner appeared to regard it as part of a conspiracy between both Respondents to sequestrate him and generate fees. The letter, of course, is a statutory requirement in terms of s.2(3)(c) of the Act. In any event, the Trustee was not appointed until almost a year after the petition was presented; there can be no question of fees being generated before appointment. Last, neither Respondent has influence over DAS, which is entirely an issue for the DAS Administrator.

 

(31) Similarly, the Petitioner's contentions that the Trustee should have called a meeting of creditors, gave them misleading information and thereby prevented a composition offer being made are irrelevant. The Trustee is an Officer of Court with statutory duties to fulfil. A number of remedies are open to the Petitioner to have complaints about the Trustee adjudicated upon. As second paragraph of the Trustee's letter of 7^th December 2011 (number 3 of the Petitioner's Inventory) makes clear, one was to compel a creditors' meeting if he or others were unhappy with the Trustee's decision not to hold one. Last, there is no legal bar to the Petitioner making a composition offer under the Act. In any case, if that is his intention, he will be prejudiced by this Petition being granted as he can only be discharged on composition if he remains sequestrated.

 

Decision

 

(32) Although I have rejected all the Petitioner's arguments, I must also consider all the circumstances. Having also fully perused the present and sequestration processes, I am unable to find any circumstance which would enable me to be satisfied that recall is appropriate. Fortification for that can be found in the Petitioner's failures to challenge the Guarantees, Demand Letters or Charges before sequestration was awarded. The court also allowed him significant leeway before it awarded sequestration. He did not follow up his intention to re-apply to DAS. He has not since challenged anything the Trustee has done in any of the ways which are legally permitted. It follows there are no circumstances justifying recall and the Petition falls to be refused.

 

(33) Expenses shall follow success.