The Upper Tribunal upheld the TC’s decision stating that her findings could not be faulted
The refusal of Traffic Commisisoner (TC) Joan Aitken to return two impounded 56-seater coaches to Douglas McKendry and his daughter Carrie has been upheld by the Upper Tribunal on appeal.
The McKendrys had sought the return of the coaches on the grounds that they were unaware they were being operated without a PSV O-Licence.
Mr McKendry had held a licence as a sole trader. That licence was revoked in 2004. An application by Mr McKendry in partnership with his wife was refused. His wife was subsequently granted a licence, trading as McKendry Coaches, subject to a condition that Mr McKendry was not to be engaged in the management of the operation.
In March 2016, the estate of Mr McKendry’s wife was sequestrated and as a result her licence terminated. The OTC then received an application for a licence in the name of a partnership between the McKendrys’ daughters Carrie and her sister Tracy Lander.
Refusing to return the coaches, the TC found that neither Mr McKendry nor Miss McKendry owned them. She concluded that both coaches were owned by a partnership, McKendry Coaches, whose members were Mr McKendry and his wife.
She considered that though one vehicle was purchased by Miss McKendry, she was not the owner. She purchased the vehicle as agent for the partnership. Miss McKendry was not registered for VAT, and the VAT paid on the purchase was reclaimed by McKendry Coaches. The purchase invoice was addressed to McKendry Coaches at their trading address, and following its purchase the vehicle had been used solely by McKendry Coaches. There was the absence of any hire agreement or such like between Miss McKendry and McKendry Coaches.
A document written by Stuart’s Coaches recorded that the second coach was sold to McKendry Coaches having been paid for in cash by Mr McKendry. That was a business transaction intended to benefit McKendry Coaches and it reclaimed the VAT paid on the purchase. She also considered that both McKendrys knew that that the two coaches were being used without the necessary PSV O-Licence.
She found that Mr McKendry continued to be involved in the day-to-day running of McKendry Coaches. She also referred to the very clear warning supplied to Miss McKendry and her sister by the OTC that, until their application for a licence was granted, their partnership had no authority to operate PSVs.
The TC said she knew that those operating McKendry Coaches were aware that, as a result of the sequestration of Mrs McKendry’s estate, her PSV O-Licence was terminated. She found that the operation was, in fact, carried on by a partnership whose members were Mr McKendry and his wife. Her findings suggested that the partnership had been carrying on an unlicensed passenger transport business.
Dismissing the appeals, the Tribunal said that they felt that the TC’s findings could not be faulted.
UPDATE: The decision by the Upper Tribunal could now be examined by the Court of Sessions. A request for leave to appeal to the Court of Sessions, has been lodged with the Upper Tribunal. A date for a hearing has yet to be set.
The basis for the fresh appeal concerns the interpretation by the TC of section 38 of the Partnership Act 1890.
