Commercial Bank of Namibia Ltd v Rossing Stone Crushers Ltd (APPEAL 40 of 1993) [1993] NAHC 2 (10 March 1993)

Commercial Bank of Namibia Ltd v Rossing Stone Crushers Ltd (APPEAL 40 of 1993) [1993] NAHC 2 (10 March 1993)

The applicant, as holder of a general notarial covering bond with a right to possession upon default, is entitled to an order for possession to perfect its security, but the court must exercise its discretion to avoid undue prejudice to the respondent, especially where the value of movables far exceeds the debt and the respondent is a going concern with prospects of repayment.

Citation
[1993] NAHC 2
Parties
Applicant: Commercial Bank of Namibia Ltd; Respondent: Rossing Stone Crushers Ltd
Court
High Court
Jurisdiction
Namibia
Judgment Date
10 March 1993
Case Number
APPEAL 40 of 1993
Procedural Posture
Civil / Judgment on Return Date of Rule Nisi
Outcome
Order granted with conditions and postponement
Legal Topics
General Notarial Bond, Security Interests, Specific Performance, Possession of Movables, Urgent Applications
Source Language
English
Commercial Law Secured Transactions General Notarial Bond Security Interests Specific Performance Possession of Movables Urgent Applications

Case Brief

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Parties

Commercial Bank of Namibia Ltd

Applicant

Rossing Stone Crushers Ltd

Respondent

Procedural Posture

Civil / Judgment on Return Date of Rule Nisi

Legal Issues

  1. 1 Whether the applicant as holder of a general notarial covering bond is entitled to take possession of the respondent's movable property to perfect its security prior to insolvency
  2. 2 Whether demand for possession is required before approaching the court
  3. 3 Whether the court should exercise its discretion to grant specific performance in the form of possession given the circumstances

Ratio Decidendi

The applicant, as holder of a general notarial covering bond with a right to possession upon default, is entitled to an order for possession to perfect its security, but the court must exercise its discretion to avoid undue prejudice to the respondent, especially where the value of movables far exceeds the debt and the respondent is a going concern with prospects of repayment.

Court Disposition

Order granted with conditions and postponement

Orders

  • Sheriff to take possession and deliver respondent's movables to applicant on 9 July 1993.
  • Applicant to retain possession as necessary to effect valuation and sale.