Body Corporate of Ark Royal v I Kuper & Company Sales (Pty) Ltd [2008] ZAGPHC 448; 30687/07 (6 November 2008)
The court found that there was a fundamental dispute of fact regarding the condition and administration of the building. The applicant failed to show good cause or a bona fide defence to justify rescission. The financial statements relied upon by the applicant indicated a high amount of outstanding levies and...
Source-derived case information.
- Citation
- [2008] ZAGPHC 448
- Parties
- Applicant: The Body Corporate of Ark Royal; Respondent: I Kuper & Company Sales (Pty) Ltd
- Court
- High Courts - Gauteng
- Jurisdiction
- South Africa
- Case Number
- 30687/07
- Procedural Posture
- Rescission Application / Application for Rescission of Judgment
- Outcome
- Application dismissed with costs.
- Judges
- Willis
- Legal Topics
- Rescission of Judgment, Sectional Titles Act, Appointment of Administrator
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Body Corporate of Ark Royal
Applicant
I Kuper & Company Sales (Pty) Ltd
Respondent
Procedural Posture
Rescission Application / Application for Rescission of Judgment
Legal Issues
- 1 Whether the applicant has shown good cause for rescission of the judgment appointing an administrator under Section 45 of the Sectional Titles Act.
- 2 Whether there is a bona fide defence to justify rescission.
- 3 Whether the administration of the body corporate is adequate.
Ratio Decidendi
The court found that there was a fundamental dispute of fact regarding the condition and administration of the building. The applicant failed to show good cause or a bona fide defence to justify rescission. The financial statements relied upon by the applicant indicated a high amount of outstanding levies and inadequate provision for repairs and maintenance, supporting the respondent's claim of poor administration. The applicant is not without remedy, as Section 46(4) of the Sectional Titles Act allows for the removal or replacement of the administrator upon application. Accordingly, the application for rescission was dismissed.
Court Disposition
Application dismissed with costs.
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION) JOHANNESBURG
DATE:06/11/2008
CASE NO:30687/07
In the matter between
THE BODY CORPORATE OF ARK ROYAL................................................................ Applicant
and
I KUPER & COMPANY SALES (PTY) LTD............................................................. Respondent
JUDGMENT
WILLIS J: This is an application for rescission of the judgment given by my brother Boruchowitz J on 18 December 2007, in terms of which he appointed Mr Clive Ginsberg as administrator of the body corporate of Ark Royal in terms of Section 45 of the Sectional Titles Act number 95 of 1986.
I shall assume in favour of the applicant for rescission that there is an adequate explanation for the default of the applicant.
Insofar as the question of good cause is concerned, there is a fundamental dispute of fact. The respondents allege that the building in question is in a parlous state and is being parlously administered. The applicant on the other hand contends that it is in an excellent condition and being well run.
As I have indicated there is a fundamental dispute of facts and I do not think this entitles me to find that there is good cause shown or that there is a bona fide defence which justifies the rescission.
I may also allude to the fact that in the audiled financial statements upon which the applicant for rescission relies, which financial
statements are for the year ended 30 June 2007, it is indicated that out of total assets of R309 953 these consist of levies due in an amount of R278 658. This to my mind strongly indicates that there is substance in the respondent's claim that the body corporate is not being properly administered. The amount for levies outstanding is extraordinarily high given the asset base of the body corporate and there also seems to be entirely inadequate provision for repairs and maintenance.
Be that as it may, I think I should point out that the applicant is not without remedy. In terms of Section 46(4) of the Sectional Titles Act a court may, upon application remove or replace the duly appointed administrator. In other words, should the applicant or any other person with a legitimate interest in the matter be of the view that Mr Ginsberg is not appropriately appointed, may apply for his removal and in effect the taking out of the body corporate from administration.
Accordingly it seems to me that the applicant cannot succeed and the following order is made
The application is dismissed with costs.