C and C Restaurant Group (Pty) Ltd and Another v Townsend; Townsend v C and C Restaurant Group (Pty) Ltd (16527/19) [2019] ZAWCHC 141 (29 October 2019)

C and C Restaurant Group (Pty) Ltd and Another v Townsend; Townsend v C and C Restaurant Group (Pty) Ltd (16527/19) [2019] ZAWCHC 141 (29 October 2019)

The court held that reconsideration under Rule 6(12)(c) is not available to a party who was aware of the urgent application and chose not to oppose it, as the order was granted by default and not ex parte. Both Bailey and the company were properly served, had legal advice, and made a conscious decision not to oppose the provisional liquidation. The company’s commercial insolvency was established on the papers, with substantial debts to creditors and SARS, and a lack of liquid assets. The provisional liquidation order was justified, and no grounds existed for judicial interference or reversal. The application for reconsideration was therefore dismissed.

Citation
[2019] ZAWCHC 141
Parties
Applicant: C and C Restaurant Group (Pty) Ltd; Applicant: Stuart Jonathan Bailey; Respondent: Michael Russell Townsend
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 October 2019
Case Number
16527/19
Procedural Posture
Urgent Application / Application for Reconsideration of Provisional Liquidation Order Under Rule 6(12)(c)
Outcome
Application for reconsideration of the provisional liquidation order under Rule 6(12)(c) is dismissed with costs.
Judges
P.A.L. Gamble
Legal Topics
Provisional Liquidation, Urgent Motion Practice, Reconsideration Under Rule 6 12 C, Commercial Insolvency, Creditor Standing
Civil Procedure Commercial and Corporate Provisional Liquidation Urgent Motion Practice Reconsideration Under Rule 6 12 C Commercial Insolvency Creditor Standing

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Parties

C and C Restaurant Group (Pty) Ltd

Applicant

Stuart Jonathan Bailey

Applicant

Michael Russell Townsend

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Provisional Liquidation Order Under Rule 6(12)(c)

Legal Issues

  1. 1 Whether the applicant is entitled to reconsideration of the provisional liquidation order under Rule 6(12)(c).
  2. 2 Whether the company is commercially insolvent and unable to pay its debts.
  3. 3 Whether the director and company had locus standi to seek reconsideration after acquiescing to the original order.

Ratio Decidendi

The court held that reconsideration under Rule 6(12)(c) is not available to a party who was aware of the urgent application and chose not to oppose it, as the order was granted by default and not ex parte. Both Bailey and the company were properly served, had legal advice, and made a conscious decision not to oppose the provisional liquidation. The company’s commercial insolvency was established on the papers, with substantial debts to creditors and SARS, and a lack of liquid assets. The provisional liquidation order was justified, and no grounds existed for judicial interference or reversal. The application for reconsideration was therefore dismissed.

Court Disposition

Application for reconsideration of the provisional liquidation order under Rule 6(12)(c) is dismissed with costs.

Orders

  • The application for reconsideration of the provisional order under Rule 6(12)(c) is dismissed with costs.