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South Africa Judgment

North Gauteng High Court, Pretoria

Firstrand Bank Limited v Ronson Trading (Pty) Ltd (13145/2010) [2010] ZAGPPHC 247 (17 December 2010)

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01

Holding and result

The court found that the respondent is clearly indebted to the applicant under the loan facility agreement and suretyship. The respondent failed to demonstrate any bona fide or reasonable grounds for disputing the debt. Assertions regarding other companies within the group possessing adequate funds or pending property sales do not constitute valid resistance to the liquidation application. The respondent's defence was insufficient and did not raise a genuine dispute. Accordingly, the requirements for a final winding-up order were satisfied.

Court disposition

Final order of winding up granted against the respondent.

Orders

  • The respondent is placed under final order of winding up.

02

Material facts

Parties

Firstrand Bank Limited

Applicant

Ronson Trading (Pty) Ltd

Respondent

Amounts and remedies

  • Loan Advanced on 28 January 2008: ZAR 5,500,000
  • Loan Advanced Under Facility Agreement: ZAR 1,493,400
  • Invoice Issued by Respondent (us$): USD 2,886,464.59
  • Offer for Property Purchase (golden Tau Developments): ZAR 110,000,000

03

Procedural history

  1. Posture

    Winding Up Application / Final Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that the respondent is indebted under a written loan facility agreement and a deed of suretyship. The amounts of R5,500,000 and R1,493,400 were lent and advanced, and repayment was due within eighteen months. There are no suspensive conditions in the agreement. The applicant seeks a final order of liquidation due to non-payment.
Respondent
The respondent asserts that the loan was intended as a development loan, repayable after completion of the development from proceeds of unit sales. It argues that the applicant should recover the debt from Double Ring (Pty) Ltd, which owns the relevant property. The respondent claims it is able to pay, citing contracts and invoices within its group, and refers to an offer for property purchase by Golden Tau Developments (Pty) Ltd.

05

Court’s reasoning

  1. 01

    Robson v Wax Works (PTY) Ltd 2001(3) SA 1117 (C) at para 15, page 1122 H-I

    The respondent bears the onus to demonstrate that the indebtedness is disputed bona fide and on reasonable grounds.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the respondent is clearly indebted to the applicant under the loan facility agreement and suretyship. The respondent failed to demonstrate any bona fide or reasonable grounds for disputing the debt. Assertions regarding other companies within the group possessing adequate funds or pending property sales do not constitute valid resistance to the liquidation application. The respondent's defence was insufficient and did not raise a genuine dispute. Accordingly, the requirements for a final winding-up order were satisfied.

Obiter and limits

  • The existence of funds or assets within related companies does not absolve the respondent from its own indebtedness under the loan agreement.
  • A genuine dispute must be supported by reasonable grounds, not mere assertions of future payments or group resources.

Court disposition

Final order of winding up granted against the respondent.

  • The respondent is placed under final order of winding up.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2010] ZAGPPHC 247

NOT

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(REPUBLIC OF SOUTH AFRICA)

CASE NO.: 13145/2010

DATE:17/12/2010

In the matter between:

FIRSTRAND

BANK LIMITED …..............................................................APPLICANT

v

RONSON TRADING (PTY) LTD...............................................................RESPONDENT

JUDGMENT

WEBSTER J

1. This is an application for the liquidation of the respondent. The application is based on a written loan facility agreement entered

into between the applicant and the respondent on 28 August, 2007, and a deed of suretyship dated 30 November, 2007, which the respondent

executed in favour of the applicant and on Golden Tau Developments (PTY) LTD.

2. It is not disputed that the amounts claimed were indeed lent and advanced by the applicant as set out in its founding affidavit in the respective sums of R5 500 000 on 28 January, 2008 and Rl 493 400 in accordance with the aforesaid loan facility agreement.

3. It is further not disputed that the funds so advanced to the two entities were repayable within eighteen (18) months from the date the said funds were advanced. I can find nothing in the loan agreement (referred to in paragraph 1 supra) that suggests that such repayments were subject to any suspensive conditions.

4. The respondent offerstas a defence the assertion that the money advanced by the applicant was for a "development loan" and the intention of the parties was that it would be repaid after the completion of the development with the proceeds of units sold in such development.

5. The respondent further avers that the applicant should have recovered the money owing by it from Double Ring (PTY) LTD, the company in whose name the immovable property forming the subject matter of the claim for R5 million is registered. It is further averred that the respondent is well-able to pay as "...Ronson Mozambique, SA, a company within the Ronson Group, has been appointed as development manager in terms of a contract vaiued R120 mi//ion...[and]...A first invoice was issued by Respondent in the amount of US $ 2 886 464.59 in respect of'(sic) the project..."

6. It is further averred that Golden Tau Developments (PTY) LTD, another company within the Ronson Group, received an offer for the purchase of its immovable property in an amount of R110 million..."

7.1 There is no doubt whatsoever that the respondent is indebted to the applicant. The respondent bears the onus, in such circumstances, to demonstrate that the indebtedness is being disputed bona fide and on reasonable grounds (Robson v Wax Works (PTY) Ltd 2001(3) SA 1117 (C) at para 15, page 1122 H-I).

7.2 The respondent's resistance in the matter falls far short of demonstrating any reasonable grounds in disputing its indebtedness. That one or other companies within its group is possessed of adequate funds to pay the amount due to the applicant

does not constitute a valid resistance to this application. It is my considered view that there is no "genuine dispute" or "bona fide dispute" between the parties.

8. It is accordingly ordered that the respondent be and is hereby placed under final order of winding up.

G.

WEBSTER

JUDGE

IN THE HIGH COURT

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Robson v Wax Works (PTY) Ltd 2001(3) SA 1117 (C)

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