ABSA Bank Ltd v Rainbow Pepper Trading 16 (Pty) Ltd (43275/2017) [2018] ZAGPPHC 964 (10 June 2018)

ABSA Bank Ltd v Rainbow Pepper Trading 16 (Pty) Ltd (43275/2017) [2018] ZAGPPHC 964 (10 June 2018)

The respondent is factually and commercially insolvent and unable to pay its debts within the meaning of the Companies Act. The respondent does not dispute its indebtedness or the amount owed. The settlement agreement relied upon by the respondent was not in full and final settlement but merely a payment mechanism, which failed due to the inability to sell the property at the reserve price. The respondent's defence does not constitute a bona fide dispute on reasonable grounds. The applicant is entitled to rely on the original cause of action as set out in the summons. It is just and equitable, considering the mounting debt, failed attempts to sell the property, and the respondent's...

Citation
[2018] ZAGPPHC 964
Parties
Applicant: ABSA Bank Ltd; Respondent: Rainbow Pepper Trading 16 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 June 2018
Case Number
43275/2017
Procedural Posture
Winding Up Application / Final Winding Up Application
Outcome
The respondent is placed under final winding-up.
Judges
R S Mothibe
Legal Topics
Winding Up of Company, Commercial Insolvency, Mortgage Bond Enforcement, Settlement Agreement, Just and Equitable Ground
Commercial and Corporate Civil Procedure Winding Up of Company Commercial Insolvency Mortgage Bond Enforcement Settlement Agreement Just and Equitable Ground

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Parties

ABSA Bank Ltd

Applicant

Rainbow Pepper Trading 16 (Pty) Ltd

Respondent

Procedural Posture

Winding Up Application / Final Winding Up Application

Legal Issues

  1. 1 Whether the respondent is unable to pay its debts within the meaning of section 344(f) and section 345 of the Companies Act 61 of 1973.
  2. 2 Whether it is just and equitable that the respondent be wound up in terms of section 344(h) of the Companies Act.
  3. 3 Whether the settlement agreement constitutes a bona fide defence to the winding-up application.

Ratio Decidendi

The respondent is factually and commercially insolvent and unable to pay its debts within the meaning of the Companies Act. The respondent does not dispute its indebtedness or the amount owed. The settlement agreement relied upon by the respondent was not in full and final settlement but merely a payment mechanism, which failed due to the inability to sell the property at the reserve price. The respondent's defence does not constitute a bona fide dispute on reasonable grounds. The applicant is entitled to rely on the original cause of action as set out in the summons. It is just and equitable, considering the mounting debt, failed attempts to sell the property, and the respondent's...

Court Disposition

The respondent is placed under final winding-up.

Orders

  • The respondent is hereby placed under final winding-up.
  • The costs of this application are costs in the winding-up.