Exclusive Access Trading 73 (Pty) Ltd v Bouwer (3829/2009) [2009] ZAECGHC 93 (10 December 2009)

Exclusive Access Trading 73 (Pty) Ltd v Bouwer (3829/2009) [2009] ZAECGHC 93 (10 December 2009)

The court held that the applicant failed to establish any act of insolvency as required by section 8(b) or 8(g) of the Insolvency Act. The nulla bona return could not be relied upon because the underlying judgment was rescinded and the action withdrawn. The answering affidavit did not constitute written notice of inability to pay, as it reflected only a dispute regarding the quantum and enforceability of the debt, not an admission of inability to pay. The applicant also failed to provide any factual basis for de facto insolvency. As none of the statutory or factual requirements for provisional sequestration were met, the application was dismissed with costs.

Citation
[2009] ZAECGHC 93
Parties
Applicant: Exclusive Access Trading 73 (Pty) Ltd; Respondent: Lynne Janet Bouwer
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
10 December 2009
Case Number
3829/2009
Procedural Posture
Urgent Application / Application for Provisional Sequestration
Outcome
Application for provisional sequestration dismissed with costs.
Judges
G G Goosen
Legal Topics
Provisional Sequestration, Act of Insolvency, Suretyship, Nulla Bona Return, National Credit Act
Civil Procedure Banking and Finance Provisional Sequestration Act of Insolvency Suretyship Nulla Bona Return National Credit Act

Case Brief

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Parties

Exclusive Access Trading 73 (Pty) Ltd

Applicant

Lynne Janet Bouwer

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration

Legal Issues

  1. 1 Whether the applicant established an act of insolvency as required by section 8(b) or 8(g) of the Insolvency Act.
  2. 2 Whether the answering affidavit constitutes written notice of inability to pay under section 8(g) of the Insolvency Act.
  3. 3 Whether the applicant proved de facto insolvency of the respondent.

Ratio Decidendi

The court held that the applicant failed to establish any act of insolvency as required by section 8(b) or 8(g) of the Insolvency Act. The nulla bona return could not be relied upon because the underlying judgment was rescinded and the action withdrawn. The answering affidavit did not constitute written notice of inability to pay, as it reflected only a dispute regarding the quantum and enforceability of the debt, not an admission of inability to pay. The applicant also failed to provide any factual basis for de facto insolvency. As none of the statutory or factual requirements for provisional sequestration were met, the application was dismissed with costs.

Court Disposition

Application for provisional sequestration dismissed with costs.

Orders

  • The application is dismissed with costs.