Absa bank Limited v Lochneberg (A657/2014) [2016] ZAGPPHC 866 (23 September 2016)

Absa bank Limited v Lochneberg (A657/2014) [2016] ZAGPPHC 866 (23 September 2016)

The court found that, since all the immovable properties forming the insolvent estate had been sold and transferred to bona fide third parties, the appeal had become academic and no effective relief could be granted. The appellant did not seek an interdict to prevent the sale or transfer pending the appeal. In these circumstances, the court declined to give judgment on the merits and instead removed the appeal from the roll. However, the court held that the appellant's opposition and appeal were justified and awarded costs to the appellant, payable from the proceeds of the insolvent estate.

Citation
[2016] ZAGPPHC 866
Parties
Appellant: Absa Bank Limited; Respondent: Leon Rudolph Lochenberg; Respondent: Patricia Lochenberg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 September 2016
Case Number
A657/2014
Procedural Posture
Civil Appeal / Appeal From Voluntary Surrender Application; Post Sale of Assets
Outcome
Appeal removed from the roll as academic; costs awarded to appellant.
Judges
A.A. Louw, D.S.S. Moshidi, V.V. Tlhapi
Legal Topics
Voluntary Surrender, Sequestration, Benefit to Creditors, Sale of Insolvent Assets
Civil Procedure Banking and Finance Voluntary Surrender Sequestration Benefit to Creditors Sale of Insolvent Assets

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Limited

Appellant

Leon Rudolph Lochenberg

Respondent

Patricia Lochenberg

Respondent

Procedural Posture

Civil Appeal / Appeal From Voluntary Surrender Application; Post Sale of Assets

Legal Issues

  1. 1 Whether the appeal against the voluntary surrender order remains justiciable after the sale and transfer of the insolvent estate's assets.
  2. 2 Whether the appellant is entitled to a costs order despite the appeal becoming academic.

Ratio Decidendi

The court found that, since all the immovable properties forming the insolvent estate had been sold and transferred to bona fide third parties, the appeal had become academic and no effective relief could be granted. The appellant did not seek an interdict to prevent the sale or transfer pending the appeal. In these circumstances, the court declined to give judgment on the merits and instead removed the appeal from the roll. However, the court held that the appellant's opposition and appeal were justified and awarded costs to the appellant, payable from the proceeds of the insolvent estate.

Court Disposition

Appeal removed from the roll as academic; costs awarded to appellant.

Orders

  • The appeal is removed from the roll.
  • The appellant's costs are payable from the proceeds, if any, of the insolvent estate.