Firstrand Bank Limited v Tonkin and Another (42034/2010) [2011] ZAGPPHC 97 (20 May 2011)

Firstrand Bank Limited v Tonkin and Another (42034/2010) [2011] ZAGPPHC 97 (20 May 2011)

The court found that the intervening creditor's opposition was based on its interest as purchaser of the main asset, but its remedy lies in the provisions of the Alienation of Land Act. The applicant demonstrated that the advantage to creditors is not limited to the immediate dividend, but includes the trustee's investigative powers. The circumstances of the sale and the respondents' lack of candour in their state of affairs justified further investigation. The court was satisfied that there was a reasonable prospect, not too remote, of pecuniary benefit to creditors. Accordingly, the provisional order of sequestration was confirmed.

Citation
[2011] ZAGPPHC 97
Parties
Applicant: Firstrand Bank Limited; Respondent: William Peter Tonkin; Respondent: Alida Tonkin; Respondent: B J K Property Group (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 May 2011
Case Number
42034/2010
Procedural Posture
Insolvency Application / Return Day of Provisional Sequestration Order; Intervention Application
Outcome
Provisional order of sequestration confirmed.
Judges
Sapire AJ
Legal Topics
Sequestration, Advantage to Creditors, Alienation of Land Act, Intervention in Insolvency, Valuation of Assets
Civil Procedure Commercial and Corporate Sequestration Advantage to Creditors Alienation of Land Act Intervention in Insolvency Valuation of Assets

Case Brief

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Parties

Firstrand Bank Limited

Applicant

William Peter Tonkin

Respondent

Alida Tonkin

Respondent

B J K Property Group (Pty) Ltd

Respondent

Procedural Posture

Insolvency Application / Return Day of Provisional Sequestration Order; Intervention Application

Legal Issues

  1. 1 Whether the provisional order of sequestration should be confirmed.
  2. 2 Whether the intervening creditor has locus standi to oppose the sequestration.
  3. 3 Whether there is a reasonable prospect of advantage to creditors if sequestration is made final.

Ratio Decidendi

The court found that the intervening creditor's opposition was based on its interest as purchaser of the main asset, but its remedy lies in the provisions of the Alienation of Land Act. The applicant demonstrated that the advantage to creditors is not limited to the immediate dividend, but includes the trustee's investigative powers. The circumstances of the sale and the respondents' lack of candour in their state of affairs justified further investigation. The court was satisfied that there was a reasonable prospect, not too remote, of pecuniary benefit to creditors. Accordingly, the provisional order of sequestration was confirmed.

Court Disposition

Provisional order of sequestration confirmed.

Orders

  • The provisional order of sequestration is confirmed.