Changing Tides 17 (Pty) N.O v Johannes and Another;In Re: Changing Tides 17 (Pty) Ltd N.O v Johannes and Another (4141 S/2013) [2014] ZAGPPHC 115 (13 March 2014)

Changing Tides 17 (Pty) N.O v Johannes and Another;In Re: Changing Tides 17 (Pty) Ltd N.O v Johannes and Another (4141 S/2013) [2014] ZAGPPHC 115 (13 March 2014)

The court found that the applicants failed to discharge the onus of proving that the voluntary surrender of their estate would be to the advantage of creditors. The applicants' valuation of their assets was challenged by the intervening creditor, who provided evidence that the forced sale value of the property was overstated and the bond amount understated. After correcting these figures, the amount available for distribution to creditors would be zero, and the dividend would fall below the 20 cents in the rand threshold required by the court's practice manual. The court also considered that the intervening creditor represented more than 70% of the creditors in value, which reinforced the...

Citation
[2014] ZAGPPHC 115
Parties
Respondent: Changing Tides 17 (Pty) Ltd N.O.; Applicant: Van Den Berg: Billy Johannes; Applicant: Van Den Berg: Jeanette
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 March 2014
Case Number
4141 S/2013
Procedural Posture
Voluntary Surrender Application / Judgment
Outcome
Application for voluntary surrender dismissed; costs awarded against applicants.
Judges
Murphy
Legal Topics
Voluntary Surrender, Advantage to Creditors, Valuation of Assets, Insolvency Act, Forced Sale Value
Civil Procedure Banking and Finance Voluntary Surrender Advantage to Creditors Valuation of Assets Insolvency Act Forced Sale Value

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Parties

Changing Tides 17 (Pty) Ltd N.O.

Respondent

Van Den Berg: Billy Johannes

Applicant

Van Den Berg: Jeanette

Applicant

Procedural Posture

Voluntary Surrender Application / Judgment

Legal Issues

  1. 1 Whether the applicants have discharged the onus to show that voluntary surrender of their estate will be to the advantage of creditors.
  2. 2 Whether the valuation of the applicants' assets and liabilities is accurate and sufficient for the purposes of the application.
  3. 3 Whether the dividend available for distribution to creditors meets the threshold stipulated by the court's practice manual.

Ratio Decidendi

The court found that the applicants failed to discharge the onus of proving that the voluntary surrender of their estate would be to the advantage of creditors. The applicants' valuation of their assets was challenged by the intervening creditor, who provided evidence that the forced sale value of the property was overstated and the bond amount understated. After correcting these figures, the amount available for distribution to creditors would be zero, and the dividend would fall below the 20 cents in the rand threshold required by the court's practice manual. The court also considered that the intervening creditor represented more than 70% of the creditors in value, which reinforced the...

Court Disposition

Application for voluntary surrender dismissed; costs awarded against applicants.

Orders

  • The intervening party is granted leave to intervene in the application.
  • The application for voluntary surrender is dismissed.