Everite Building Products (Pty) Ltd v Mpumalanga Roof Trustees CC (33469/2013) [2014] ZAGPPHC 747 (30 September 2014)

Everite Building Products (Pty) Ltd v Mpumalanga Roof Trustees CC (33469/2013) [2014] ZAGPPHC 747 (30 September 2014)

The court found that Nedbank, although a major secured creditor, did not have sufficient grounds to intervene in the winding-up application as the respondent was commercially insolvent and the legal requirements for intervention were not met. The arguments advanced by Nedbank regarding just and equitable grounds, advantage to creditors, and prescription were not applicable in the context of insolvency proceedings. The applicant’s claim was not prescribed due to acknowledgments of debt. The intervention application was not well-founded and was bound to fail. Consequently, the applicant was entitled to costs on an attorney and client scale for opposing the intervention.

Citation
[2014] ZAGPPHC 747
Parties
Applicant: Everite Building Products (Pty) Ltd; Respondent: Mpumalanga Roof Trustees CC; Intervening Party: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 September 2014
Case Number
33469/2013
Procedural Posture
Urgent Application / Costs Determination Following Settlement and Intervention Application
Outcome
Application to intervene dismissed; costs awarded to applicant on attorney and client scale.
Judges
Lephoko AJ
Legal Topics
Winding Up Proceedings, Intervention by Third Party, Costs Award, Prescription Interruption
Civil Procedure Winding Up Proceedings Intervention by Third Party Costs Award Prescription Interruption

Case Brief

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Parties

Everite Building Products (Pty) Ltd

Applicant

Mpumalanga Roof Trustees CC

Respondent

Nedbank Limited

Intervening Party

Procedural Posture

Urgent Application / Costs Determination Following Settlement and Intervention Application

Legal Issues

  1. 1 Whether the intervening party (Nedbank) had a sufficient legal interest to intervene in the winding-up application.
  2. 2 Whether the intervention application was well-founded in law.
  3. 3 Whether the applicant is entitled to costs on an attorney and client scale for opposing the intervention.

Ratio Decidendi

The court found that Nedbank, although a major secured creditor, did not have sufficient grounds to intervene in the winding-up application as the respondent was commercially insolvent and the legal requirements for intervention were not met. The arguments advanced by Nedbank regarding just and equitable grounds, advantage to creditors, and prescription were not applicable in the context of insolvency proceedings. The applicant’s claim was not prescribed due to acknowledgments of debt. The intervention application was not well-founded and was bound to fail. Consequently, the applicant was entitled to costs on an attorney and client scale for opposing the intervention.

Court Disposition

Application to intervene dismissed; costs awarded to applicant on attorney and client scale.

Orders

  • The intervening party is ordered to pay the costs of the application on the scale as between attorney and client.