Dacomb v Green Heat (Pty) Ltd (8906/15) [2018] ZAKZDHC 5 (16 March 2018)

Dacomb v Green Heat (Pty) Ltd (8906/15) [2018] ZAKZDHC 5 (16 March 2018)

The court found that the applicant had established a debt in respect of arrear salary for the period November 2011 to February 2014, which was admitted by the respondent in correspondence and not shown to have been paid or compromised. The respondent failed to prove that the debt was settled or that there was a bona fide dispute on reasonable grounds. Claims for reimbursement of expenses and monies from Builders Warehouse were not proven as debts, as the respondent's version prevailed under the Plascon-Evans rule. The section 345 demand was properly served and not responded to, resulting in a deemed inability to pay debts. The respondent was found to be insolvent and no special...

Citation
[2018] ZAKZDHC 5
Parties
Applicant: Stuart Charles Dacomb; Respondent: Green Heat (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 March 2018
Case Number
8906/15
Procedural Posture
Winding Up Application / Final Order Confirmation
Outcome
The provisional winding-up order is confirmed; the respondent is finally wound-up with costs.
Judges
Mngadi
Legal Topics
Company Liquidation, Creditor Claims, Insolvency, Final Winding Up Order
Commercial and Corporate Civil Procedure Company Liquidation Creditor Claims Insolvency Final Winding Up Order

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Parties

Stuart Charles Dacomb

Applicant

Green Heat (Pty) Ltd

Respondent

Procedural Posture

Winding Up Application / Final Order Confirmation

Legal Issues

  1. 1 Whether the respondent is unable to pay its debts within the meaning of section 345(1)(a) read with section 344(f) of the Companies Act 61 of 1973.
  2. 2 Whether the applicant is a creditor of the respondent for the purposes of winding-up.
  3. 3 Whether the debts claimed by the applicant are disputed on bona fide and reasonable grounds.

Ratio Decidendi

The court found that the applicant had established a debt in respect of arrear salary for the period November 2011 to February 2014, which was admitted by the respondent in correspondence and not shown to have been paid or compromised. The respondent failed to prove that the debt was settled or that there was a bona fide dispute on reasonable grounds. Claims for reimbursement of expenses and monies from Builders Warehouse were not proven as debts, as the respondent's version prevailed under the Plascon-Evans rule. The section 345 demand was properly served and not responded to, resulting in a deemed inability to pay debts. The respondent was found to be insolvent and no special...

Court Disposition

The provisional winding-up order is confirmed; the respondent is finally wound-up with costs.

Orders

  • The provisional winding-up of the respondent issued on 14 October 2016 and amended on 6 December 2016 is confirmed with costs. The respondent is finally wound-up.
  • The costs are to be costs in liquidation of the respondent and to include costs occasioned by the employment of Senior counsel and Junior counsel.