Engelbrecht NO and Others v BRC Diamondcore Ltd and Another (138/2010) [2010] ZANCHC 3 (19 March 2010)

Engelbrecht NO and Others v BRC Diamondcore Ltd and Another (138/2010) [2010] ZANCHC 3 (19 March 2010)

The applicants, as joint liquidators, were justified in seeking court authority to raise finance and encumber the assets of the liquidated company, as required by section 386(5) of the Companies Act. The respondents' opposition was ill-conceived, particularly as Ansafon (Pty) Ltd had no locus standi to oppose the application and the respondents attempted to supplement their case irregularly. The respondents only consented to the relief sought at the last moment, after being warned that costs on an attorney and client scale would be sought. The conduct of the respondents was unreasonable and justified an adverse costs order. The court exercised its discretion to award costs against the...

Citation
[2010] ZANCHC 3
Parties
Applicant: Johan Francois Engelbrecht N.O.; Applicant: Brian St. Clair Cooper N.O.; Applicant: Mathebe Violet Phatsoane N.O.; Applicant: Gary Botha N.O.; Respondent: BRC Diamondcore Limited; Respondent: Ansafon (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
19 March 2010
Case Number
138/2010
Procedural Posture
Urgent Application / Costs Determination Following Settlement
Outcome
Application granted; costs awarded against the respondents on an attorney and client scale.
Judges
GNZ MJALI
Legal Topics
Liquidation Proceedings, Authority of Liquidators, Costs Award, Attorney and Client Scale
Civil Procedure Commercial and Corporate Liquidation Proceedings Authority of Liquidators Costs Award Attorney and Client Scale

Case Brief

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Parties

Johan Francois Engelbrecht N.O.

Applicant

Brian St. Clair Cooper N.O.

Applicant

Mathebe Violet Phatsoane N.O.

Applicant

Gary Botha N.O.

Applicant

BRC Diamondcore Limited

Respondent

Ansafon (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Costs Determination Following Settlement

Legal Issues

  1. 1 Whether the applicants required court authority to raise finance and encumber assets of the liquidated company.
  2. 2 Whether the respondents had locus standi to oppose the application.
  3. 3 Whether costs should be awarded against the respondents on an attorney and client scale.

Ratio Decidendi

The applicants, as joint liquidators, were justified in seeking court authority to raise finance and encumber the assets of the liquidated company, as required by section 386(5) of the Companies Act. The respondents' opposition was ill-conceived, particularly as Ansafon (Pty) Ltd had no locus standi to oppose the application and the respondents attempted to supplement their case irregularly. The respondents only consented to the relief sought at the last moment, after being warned that costs on an attorney and client scale would be sought. The conduct of the respondents was unreasonable and justified an adverse costs order. The court exercised its discretion to award costs against the...

Court Disposition

Application granted; costs awarded against the respondents on an attorney and client scale.

Orders

  • The applicants are authorized to raise finance with any registered financial institution or bank for an amount not exceeding R2 million, such finance to be costs in the administration of the estate of Diamond Core Resources (PTY) LTD, and the applicants are authorized, in raising the finance, to encumber the assets,...
  • The respondents are to pay the costs of this application including costs of the application to strike out the further affidavit on an attorney and client scale.