Fourie and Another v Housezero Construction Pty (Ltd) and Others (43996/2021) [2022] ZAGPPHC 47 (26 January 2022)

Fourie and Another v Housezero Construction Pty (Ltd) and Others (43996/2021) [2022] ZAGPPHC 47 (26 January 2022)

The court found that the Applicants established a prima facie case for provisional liquidation. The Respondents did not dispute the indebtedness nor provide reasonable explanations for their failure to deliver contracted modular homes. The Respondents' conduct, including ongoing trading while insolvent and repeated misrepresentations to the public, justified urgent intervention. The substratum of the Respondent companies had disappeared, and their business practices amounted to fraudulent misrepresentation. The urgency was further supported by the risk to the public and creditors. The Applicants' locus standi was confirmed both as creditors and in the public interest. The requirements for...

Citation
[2022] ZAGPPHC 47
Parties
Applicant: Nadia Fourie; Applicant: Leon Bosman; Respondent: Housezero Construction Pty (Ltd); Respondent: Housezero Commercial Pty (Ltd); Respondent: Neriel Hurwitz; Respondent: Yehoram Gur-Arie; Respondent: Suntank Pty (Ltd); Respondent: Compliance Management Services Pty (Ltd)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 January 2022
Case Number
43996/2021
Procedural Posture
Urgent Application / Provisional Liquidation Application on Urgent Roll
Outcome
Provisional liquidation granted against the First, Second, Fifth, and Sixth Respondents; application heard as urgent; costs to be costs in the winding up.
Judges
T A Maumela
Legal Topics
Provisional Liquidation, Just and Equitable Winding Up, Creditor Claims, Urgent Interdict, Piercing Corporate Veil
Civil Procedure Commercial and Corporate Provisional Liquidation Just and Equitable Winding Up Creditor Claims Urgent Interdict Piercing Corporate Veil

Case Brief

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Parties

Nadia Fourie

Applicant

Leon Bosman

Applicant

Housezero Construction Pty (Ltd)

Respondent

Housezero Commercial Pty (Ltd)

Respondent

Neriel Hurwitz

Respondent

Yehoram Gur-Arie

Respondent

Suntank Pty (Ltd)

Respondent

Compliance Management Services Pty (Ltd)

Respondent

Procedural Posture

Urgent Application / Provisional Liquidation Application on Urgent Roll

Legal Issues

  1. 1 Whether the application for provisional liquidation should be heard as urgent.
  2. 2 Whether the Applicants have established a prima facie case of insolvency against the Respondent companies.
  3. 3 Whether it is just and equitable to place the Respondent companies under provisional liquidation.

Ratio Decidendi

The court found that the Applicants established a prima facie case for provisional liquidation. The Respondents did not dispute the indebtedness nor provide reasonable explanations for their failure to deliver contracted modular homes. The Respondents' conduct, including ongoing trading while insolvent and repeated misrepresentations to the public, justified urgent intervention. The substratum of the Respondent companies had disappeared, and their business practices amounted to fraudulent misrepresentation. The urgency was further supported by the risk to the public and creditors. The Applicants' locus standi was confirmed both as creditors and in the public interest. The requirements for...

Court Disposition

Provisional liquidation granted against the First, Second, Fifth, and Sixth Respondents; application heard as urgent; costs to be costs in the winding up.

Orders

  • The application is heard as one of urgency; requirements of notice, forms, service, and time periods are dispensed with and condoned.
  • The founding affidavit and annexures deposed to by Michelle Bosman are incorporated into the founding affidavit of 6 December 2021.