Gain v Mawela Properties Proprietary Limited (2013/20119) [2013] ZAGPJHC 304 (20 November 2013)

Gain v Mawela Properties Proprietary Limited (2013/20119) [2013] ZAGPJHC 304 (20 November 2013)

The respondent is commercially insolvent and unable to pay its debt to the applicant. The alleged pactum de non petendo is unsupported by evidence, inconsistent with the written loan agreement, and commercially unreasonable. There is no bona fide dispute of fact regarding its existence. The defence of lis pendens fails because the relief sought in the civil action (monetary payment) differs from that in the winding-up application (liquidation of the company for the benefit of all creditors). The application is not an abuse of process, as the applicant has justified both proceedings. The court exercises its discretion to grant a provisional winding-up order.

Citation
[2013] ZAGPJHC 304
Parties
Applicant: Peter Kennedy Gain; Respondent: Mawela Properties Proprietary Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 November 2013
Case Number
2013/20119
Procedural Posture
Urgent Application / Application for Provisional Winding Up
Outcome
Provisional winding-up of the respondent granted.
Judges
K. Satchwell
Legal Topics
Provisional Winding Up, Pactum De Non Petendo, Lis Pendens, Company Indebtedness
Commercial and Corporate Civil Procedure Provisional Winding Up Pactum De Non Petendo Lis Pendens Company Indebtedness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Peter Kennedy Gain

Applicant

Mawela Properties Proprietary Limited

Respondent

Procedural Posture

Urgent Application / Application for Provisional Winding Up

Legal Issues

  1. 1 Whether the respondent should be placed under provisional winding-up due to inability to pay its debts.
  2. 2 Whether a pactum de non petendo with a third party precludes the applicant from instituting proceedings.
  3. 3 Whether the defence of lis pendens applies due to pending civil action for the same debt.

Ratio Decidendi

The respondent is commercially insolvent and unable to pay its debt to the applicant. The alleged pactum de non petendo is unsupported by evidence, inconsistent with the written loan agreement, and commercially unreasonable. There is no bona fide dispute of fact regarding its existence. The defence of lis pendens fails because the relief sought in the civil action (monetary payment) differs from that in the winding-up application (liquidation of the company for the benefit of all creditors). The application is not an abuse of process, as the applicant has justified both proceedings. The court exercises its discretion to grant a provisional winding-up order.

Court Disposition

Provisional winding-up of the respondent granted.

Orders

  • The respondent is placed under provisional winding-up.
  • Interested parties are called upon to show cause on 25 February 2013 why a final winding-up order should not be made.