Budge NO and Others v Midnight Storm Investments 256 (Pty) Ltd and Another, Budge NO v Wavelengths 1147 and Another (2011/27316, 2011/14531) [2011] ZAGPJHC 167; 2012 (2) SA 28 (GSJ) (15 November 2011)

Budge NO and Others v Midnight Storm Investments 256 (Pty) Ltd and Another, Budge NO v Wavelengths 1147 and Another (2011/27316, 2011/14531) [2011] ZAGPJHC 167; 2012 (2) SA 28 (GSJ) (15 November 2011)

The court held that the just and equitable ground for winding-up under section 81(1)(d)(iii) of the Companies Act 71 of 2008 is not limited by the ejusdem generis rule and should be interpreted in line with its historical meaning under previous legislation. The breakdown in the relationship between Messrs Budge and Glyn-Cuthbert, the failure to implement the dissolution agreement, and the lack of consensus on winding down the companies established a justifiable lack of confidence in the management of Midnight Storm and Wavelengths. The court found that the applicants had satisfied the onus on a balance of probabilities and that it was just and equitable to place both companies under final...

Citation
[2011] ZAGPJHC 167
Parties
Applicant: Jonathan Stuart Budge N.O.; Applicant: Farrell Ean Boon N.O.; Applicant: Vivien Barbara Budge N.O.; Respondent: Midnight Storm Investments 256 (Pty) Ltd; Respondent: Russell Glyn-Cuthbert; Applicant: Wavelengths 1147 CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 November 2011
Case Number
2011/27316; 2011/14531
Procedural Posture
Winding Up Application / Final Order
Outcome
Final winding-up orders granted for both Midnight Storm Investments 256 (Pty) Ltd and Wavelengths 1147 CC.
Judges
P.A. Meyer
Legal Topics
Just and Equitable Winding Up, Companies Act 71 of 2008, Deadlock, Dissolution of Partnership, Management Fee Dispute
Commercial and Corporate Just and Equitable Winding Up Companies Act 71 of 2008 Deadlock Dissolution of Partnership Management Fee Dispute

Case Brief

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Parties

Jonathan Stuart Budge N.O.

Applicant

Farrell Ean Boon N.O.

Applicant

Vivien Barbara Budge N.O.

Applicant

Midnight Storm Investments 256 (Pty) Ltd

Respondent

Russell Glyn-Cuthbert

Respondent

Wavelengths 1147 CC

Applicant

Procedural Posture

Winding Up Application / Final Order

Legal Issues

  1. 1 Whether the just and equitable ground for winding-up under section 81(1)(d)(iii) of the Companies Act 71 of 2008 is limited by the ejusdem generis rule.
  2. 2 Whether the breakdown in the relationship and management deadlock between the parties justifies final winding-up of the companies.
  3. 3 Whether the applicants have established, on a balance of probabilities, that it is just and equitable to wind up Midnight Storm and Wavelengths.

Ratio Decidendi

The court held that the just and equitable ground for winding-up under section 81(1)(d)(iii) of the Companies Act 71 of 2008 is not limited by the ejusdem generis rule and should be interpreted in line with its historical meaning under previous legislation. The breakdown in the relationship between Messrs Budge and Glyn-Cuthbert, the failure to implement the dissolution agreement, and the lack of consensus on winding down the companies established a justifiable lack of confidence in the management of Midnight Storm and Wavelengths. The court found that the applicants had satisfied the onus on a balance of probabilities and that it was just and equitable to place both companies under final...

Court Disposition

Final winding-up orders granted for both Midnight Storm Investments 256 (Pty) Ltd and Wavelengths 1147 CC.

Orders

  • The first respondent company, Midnight Storm Investments 256 (Pty) Ltd, is placed under final winding-up.
  • The costs of the application, including the costs attendant upon the engagement of two counsel for the applicants, are to be costs in the winding-up.