DLM Construction (Pty) Ltd v Likhanyile Trading Enterprise (Pty) Ltd and Others (49657/2014) [2014] ZAGPPHC 569 (24 July 2014)

DLM Construction (Pty) Ltd v Likhanyile Trading Enterprise (Pty) Ltd and Others (49657/2014) [2014] ZAGPPHC 569 (24 July 2014)

The court found that the applicant failed to disclose material facts, specifically the rejection of its proposal by the first respondent, which was within its knowledge at the time of the ex parte application. The applicant did not establish that the first respondent was dissipating assets or acting with intent to defeat creditors, as required for a preservation order. The evidence did not show a deliberate disposal or concealment of funds. Furthermore, the matter was riddled with disputes of fact that could not be resolved on the papers, and the applicant should have foreseen this and proceeded by way of trial rather than application. The rule nisi was discharged, the remaining prayers...

Citation
[2014] ZAGPPHC 569
Parties
Applicant: DLM Construction (Pty) Ltd; Respondent: Likhanyile Trading Enterprise (Pty) Ltd; Respondent: First National Bank Limited; Respondent: Standard Bank Limited; Respondent: Ekhurhulene Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 July 2014
Case Number
49657/2014
Procedural Posture
Urgent Application / Application for Interim Interdict and Preservation Order; Opposed Motion; Referral to Trial
Outcome
Application for preservation order and interim relief dismissed; rule nisi discharged; dispute referred to trial; costs awarded to first respondent.
Judges
E H Kubushi
Legal Topics
Preservation Order, Urgent Interdict, Failure to Disclose Material Facts, Dispute of Fact, Subcontract Agreement, Costs Order
Civil Procedure Commercial and Corporate Preservation Order Urgent Interdict Failure to Disclose Material Facts Dispute of Fact Subcontract Agreement Costs Order

Case Brief

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Parties

DLM Construction (Pty) Ltd

Applicant

Likhanyile Trading Enterprise (Pty) Ltd

Respondent

First National Bank Limited

Respondent

Standard Bank Limited

Respondent

Ekhurhulene Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict and Preservation Order; Opposed Motion; Referral to Trial

Legal Issues

  1. 1 Whether the applicant disclosed all material facts in the ex parte application for a preservation order.
  2. 2 Whether the applicant made out a case for a preservation (anti-dissipation) order freezing the first respondent's bank accounts.
  3. 3 Whether the matter should be referred to trial due to disputes of fact incapable of resolution on the papers.

Ratio Decidendi

The court found that the applicant failed to disclose material facts, specifically the rejection of its proposal by the first respondent, which was within its knowledge at the time of the ex parte application. The applicant did not establish that the first respondent was dissipating assets or acting with intent to defeat creditors, as required for a preservation order. The evidence did not show a deliberate disposal or concealment of funds. Furthermore, the matter was riddled with disputes of fact that could not be resolved on the papers, and the applicant should have foreseen this and proceeded by way of trial rather than application. The rule nisi was discharged, the remaining prayers...

Court Disposition

Application for preservation order and interim relief dismissed; rule nisi discharged; dispute referred to trial; costs awarded to first respondent.

Orders

  • The rule nisi granted on 4 July 2014 in respect of prayers 6, 7, 8 and 9 of the notice of motion is discharged.
  • The remaining prayers of the notice of motion are dismissed.