Engen Petroleum Ltd v Goudis Carriers (Pty) Ltd ( In Liquidation) (2013/ A5043) [2014] ZAGPJHC 273; [2015] 1 All SA 324 (GJ); 2015 (6) SA 21 (GJ) (20 October 2014)

Engen Petroleum Ltd v Goudis Carriers (Pty) Ltd ( In Liquidation) (2013/ A5043) [2014] ZAGPJHC 273; [2015] 1 All SA 324 (GJ); 2015 (6) SA 21 (GJ) (20 October 2014)

Section 341(2) of the Companies Act 61 of 1973 does not empower the court to validate dispositions made by a company after the date of the final winding-up order. The phrase 'being wound up' refers to the period between the presentment of the winding-up application and the granting of the final order. After the final order, the company's office bearers lose authority to make valid dispositions, and only the liquidator may act for the company. The retrospective effect of concursus creditorum renders transactions made after the final order void, and the court's power to validate is limited to transactions made before the final order. The applicant must repay amounts received after the final...

Citation
[2014] ZAGPJHC 273
Parties
Applicant: Engen Petroleum Ltd; Respondent: Goudis Carriers (Pty) Ltd (In Liquidation)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2014
Case Number
2013/ A5043
Procedural Posture
Civil Application / Judgment on Application and Counterclaim
Outcome
Application dismissed; counterclaim upheld. Applicant ordered to repay amounts received after the final winding-up order, with interest and costs.
Judges
R Sutherland
Legal Topics
Winding Up, Concursus Creditorum, Court Validation of Dispositions, Companies Act Section 341 2
Commercial and Corporate Winding Up Concursus Creditorum Court Validation of Dispositions Companies Act Section 341 2

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Parties

Engen Petroleum Ltd

Applicant

Goudis Carriers (Pty) Ltd (In Liquidation)

Respondent

Procedural Posture

Civil Application / Judgment on Application and Counterclaim

Legal Issues

  1. 1 Does section 341(2) of the Companies Act 61 of 1973 empower a court to validate dispositions made by a company after the date of the final winding-up order?
  2. 2 Is the applicant liable to repay amounts received from the respondent after the final winding-up order was granted?

Ratio Decidendi

Section 341(2) of the Companies Act 61 of 1973 does not empower the court to validate dispositions made by a company after the date of the final winding-up order. The phrase 'being wound up' refers to the period between the presentment of the winding-up application and the granting of the final order. After the final order, the company's office bearers lose authority to make valid dispositions, and only the liquidator may act for the company. The retrospective effect of concursus creditorum renders transactions made after the final order void, and the court's power to validate is limited to transactions made before the final order. The applicant must repay amounts received after the final...

Court Disposition

Application dismissed; counterclaim upheld. Applicant ordered to repay amounts received after the final winding-up order, with interest and costs.

Orders

  • The applicant is ordered to pay to the respondent the following amounts together with interest at 15.5% per annum from the dates listed until date of payment: R702,310.52 from 31 October 2012; R300,000 from 16 November 2013; R772,501.85 from 22 November 2012; R200,000 from 14 December 2012; R200,000 from 7 January...
  • The applicant shall pay the respondent's costs.