Absa Bank Limited v Murray and Another (4188/2015) [2016] ZAECGHC 64 (23 August 2016)

Absa Bank Limited v Murray and Another (4188/2015) [2016] ZAECGHC 64 (23 August 2016)

The court found that the applicant failed to prove that the respondent committed any acts of insolvency as contemplated in section 8(c) or (d) of the Insolvency Act, as the founding affidavit did not set out sufficient facts to support such allegations. The respondent's application for debt review and the existence of a re-arrangement order cannot be regarded as acts of insolvency due to section 8A of the Insolvency Act. The evidence established that the respondent's assets, based on expert valuation, exceeded his liabilities, and thus he was not factually insolvent. The applicant's reliance on alleged defaults under the debt re-arrangement order was undermined by its own confirmation...

Citation
[2016] ZAECGHC 64
Parties
Applicant: Absa Bank Limited; Respondent: Gary David Murray; Respondent: Claudia Stephania Murray
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
23 August 2016
Case Number
4188/2015
Procedural Posture
Sequestration Application / Final Sequestration Hearing
Outcome
Application for final sequestration dismissed; provisional sequestration order discharged.
Judges
G H Bloem
Legal Topics
National Credit Act, Debt Review, Sequestration, Acts of Insolvency
Banking and Finance Civil Procedure National Credit Act Debt Review Sequestration Acts of Insolvency

Case Brief

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Parties

Absa Bank Limited

Applicant

Gary David Murray

Respondent

Claudia Stephania Murray

Respondent

Procedural Posture

Sequestration Application / Final Sequestration Hearing

Legal Issues

  1. 1 Whether the applicant is entitled to a final sequestration order against the respondent's estate.
  2. 2 Whether the respondent committed any acts of insolvency as contemplated in section 8 of the Insolvency Act.
  3. 3 Whether the respondent is factually insolvent.

Ratio Decidendi

The court found that the applicant failed to prove that the respondent committed any acts of insolvency as contemplated in section 8(c) or (d) of the Insolvency Act, as the founding affidavit did not set out sufficient facts to support such allegations. The respondent's application for debt review and the existence of a re-arrangement order cannot be regarded as acts of insolvency due to section 8A of the Insolvency Act. The evidence established that the respondent's assets, based on expert valuation, exceeded his liabilities, and thus he was not factually insolvent. The applicant's reliance on alleged defaults under the debt re-arrangement order was undermined by its own confirmation...

Court Disposition

Application for final sequestration dismissed; provisional sequestration order discharged.

Orders

  • The provisional sequestration order is discharged.
  • The application for the sequestration of the first respondent's estate is dismissed with costs, including costs attendant upon the employment of two counsel where so employed.