Flexi Holiday Club v La Lucia Sands Shareblock Limited (90/02/01) [2006] ZAKZHC 6; [2006] 2 All SA 479 (D) (31 March 2006)

Flexi Holiday Club v La Lucia Sands Shareblock Limited (90/02/01) [2006] ZAKZHC 6; [2006] 2 All SA 479 (D) (31 March 2006)

The court held that the respondent's consent is required for the transfer of share blocks, as the delegation of obligations under the Use and Occupation Agreement and the Articles of Association necessitates creditor consent under common law. The relevant provisions of the Articles of Association and the Use Agreement do not expressly or impliedly waive this requirement. The applicant failed to demonstrate that the respondent's consent is unnecessary, and did not provide evidence that the owner, Farrell, sought or obtained such consent. The application was therefore dismissed.

Citation
[2006] ZAKZHC 6
Parties
Applicant: Flexi Holiday Club; Respondent: La Lucia Sands Shareblock Limited
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
31 March 2006
Case Number
4990/2002
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed with costs.
Judges
C.N. Patel
Legal Topics
Share Blocks Control Act, Delegation of Obligations, Transfer of Shares, Creditor Consent, Property Time Sharing Control Act
Land and Property Commercial and Corporate Share Blocks Control Act Delegation of Obligations Transfer of Shares Creditor Consent Property Time Sharing Control Act

Case Brief

Summary, issues, holding and outcome

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Parties

Flexi Holiday Club

Applicant

La Lucia Sands Shareblock Limited

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the respondent's consent is required for the transfer of share blocks from Farrell to the applicant.
  2. 2 Whether the applicant has made out a case that the respondent's consent is unnecessary for the transfer.
  3. 3 Whether the Articles of Association and Use and Occupation Agreement waive the respondent's right to consent to the transfer.

Ratio Decidendi

The court held that the respondent's consent is required for the transfer of share blocks, as the delegation of obligations under the Use and Occupation Agreement and the Articles of Association necessitates creditor consent under common law. The relevant provisions of the Articles of Association and the Use Agreement do not expressly or impliedly waive this requirement. The applicant failed to demonstrate that the respondent's consent is unnecessary, and did not provide evidence that the owner, Farrell, sought or obtained such consent. The application was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.