Firstrand Bank Ltd t/a Wesbank v Timewise Couriers CC (719/2008) [2009] ZAKZDHC 45 (16 October 2009)

Firstrand Bank Ltd t/a Wesbank v Timewise Couriers CC (719/2008) [2009] ZAKZDHC 45 (16 October 2009)

The respondent is commercially insolvent, having failed to pay its debts despite written demand and having not made any payment since its cheque was dishonoured in October 2007. The respondent's defence regarding errors in the applicant's bookkeeping system is unsupported by documentary evidence and is vague. The respondent failed to provide financial statements or proof of ability to pay. The security held is insufficient given the combined indebtedness of related entities. Although the letter of demand was not served at the registered office as required by section 69(1)(a), the court is satisfied on the main issue that the respondent is unable to pay its debts, rendering strict...

Citation
[2009] ZAKZDHC 45
Parties
Applicant: Firstrand Bank Ltd t/a Wesbank; Respondent: Timewise Couriers CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 October 2009
Case Number
719/2008
Procedural Posture
Winding Up Application / First Instance
Outcome
Provisional winding-up order granted against the respondent.
Judges
Madondo
Legal Topics
Winding Up of Close Corporation, Commercial Insolvency, Liquidation by Court, Onus of Dispute, Adequacy of Security
Commercial and Corporate Civil Procedure Winding Up of Close Corporation Commercial Insolvency Liquidation by Court Onus of Dispute Adequacy of Security

Case Brief

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Parties

Firstrand Bank Ltd t/a Wesbank

Applicant

Timewise Couriers CC

Respondent

Procedural Posture

Winding Up Application / First Instance

Legal Issues

  1. 1 Whether the respondent is unable to pay its debts or should be deemed unable to pay its debts.
  2. 2 Whether it is just and equitable that the respondent be wound up.

Ratio Decidendi

The respondent is commercially insolvent, having failed to pay its debts despite written demand and having not made any payment since its cheque was dishonoured in October 2007. The respondent's defence regarding errors in the applicant's bookkeeping system is unsupported by documentary evidence and is vague. The respondent failed to provide financial statements or proof of ability to pay. The security held is insufficient given the combined indebtedness of related entities. Although the letter of demand was not served at the registered office as required by section 69(1)(a), the court is satisfied on the main issue that the respondent is unable to pay its debts, rendering strict...

Court Disposition

Provisional winding-up order granted against the respondent.

Orders

  • A provisional winding-up order is granted against the respondent returnable on 15 December 2009.
  • A copy of the order must be served forthwith upon the respondent at its registered office.