Comitis NO and Others v Fairbridge Mall (Pty) Ltd (A332/2012) [2013] ZAWCHC 99 (5 February 2013)

Comitis NO and Others v Fairbridge Mall (Pty) Ltd (A332/2012) [2013] ZAWCHC 99 (5 February 2013)

The court held that the appellants failed to establish that the respondent company was a quasi-partnership or that there was an underpinning agreement or arrangement between members sufficient to invoke the deadlock principle. Familial connection and mutual trust alone do not suffice to create partner-like obligations or justify winding up on just and equitable grounds. The presence of shareholders outside the alleged familial arrangement further undermined the appellants' case. The application to introduce further evidence on appeal was dismissed as the requirements for admission were not met and no exceptional circumstances were present. The appeal was dismissed with costs, including...

Citation
[2013] ZAWCHC 99
Parties
Appellant: Jean Michel Comitis N.O.; Appellant: George Comitis N.O.; Appellant: Lisa Anne Comitis N.O.; Appellant: Salomé Comitis N.O.; Respondent: Fairbridge Mall (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 February 2013
Case Number
A332/2012
Procedural Posture
Civil Appeal / Appeal From Refusal of Winding Up Application
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
A.G Binns-Ward, P.B. Fourie, C.M.J Fortuin
Legal Topics
Winding Up of Company, Just and Equitable Ground, Quasi Partnership, Deadlock Principle, Corporate Personality, Introduction of Fresh Evidence on Appeal
Commercial and Corporate Winding Up of Company Just and Equitable Ground Quasi Partnership Deadlock Principle Corporate Personality Introduction of Fresh Evidence on Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Jean Michel Comitis N.O.

Appellant

George Comitis N.O.

Appellant

Lisa Anne Comitis N.O.

Appellant

Salomé Comitis N.O.

Appellant

Fairbridge Mall (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Refusal of Winding Up Application

Legal Issues

  1. 1 Whether the respondent company is a quasi-partnership amenable to winding up on just and equitable grounds.
  2. 2 Whether the deadlock principle applies to the respondent company.
  3. 3 Whether there was sufficient evidence of an underpinning agreement or arrangement between members to invoke the deadlock principle.

Ratio Decidendi

The court held that the appellants failed to establish that the respondent company was a quasi-partnership or that there was an underpinning agreement or arrangement between members sufficient to invoke the deadlock principle. Familial connection and mutual trust alone do not suffice to create partner-like obligations or justify winding up on just and equitable grounds. The presence of shareholders outside the alleged familial arrangement further undermined the appellants' case. The application to introduce further evidence on appeal was dismissed as the requirements for admission were not met and no exceptional circumstances were present. The appeal was dismissed with costs, including...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The application to introduce further evidence on appeal is dismissed with costs.
  • The appeal is dismissed with costs.