Gillow v Versfeld and Another (D1211/2020) [2021] ZAKZDHC 21 (23 June 2021)

Gillow v Versfeld and Another (D1211/2020) [2021] ZAKZDHC 21 (23 June 2021)

The court held that the partnership between the applicant and first respondent must be liquidated in terms of both the settlement agreement and the liquidator's mandate. The liquidator's mandate does not override the settlement agreement but is supplementary to it. The intention of the parties, as reflected in the settlement agreement, was to retain certain assets individually and only liquidate those not specifically retained. The liquidator's powers must be interpreted in light of the agreement and the context in which both documents were created. The court found that annexure M did not constitute a ruling by the liquidator, and therefore the time bar for launching the application did...

Citation
[2021] ZAKZDHC 21
Parties
Applicant: Lynette Doreen Gillow; Respondent: Clifton Versfeld; Respondent: Neil David Button N.O.
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
23 June 2021
Case Number
D1211/2020
Procedural Posture
Urgent Application / Final Judgment After Opposed Motion and Counter Application
Outcome
The applicant's application succeeds. The first respondent's counter-application is dismissed with costs. The liquidation and distribution of the partnership estate must be conducted in accordance with both the settlement agreement and the liquidator's mandate, as rectified by the court.
Judges
Hadebe
Legal Topics
Universal Partnership Dissolution, Settlement Agreement Interpretation, Liquidator Mandate, Rectification of Mandate, Liquidation and Distribution Account
Family and Children Civil Procedure Universal Partnership Dissolution Settlement Agreement Interpretation Liquidator Mandate Rectification of Mandate Liquidation and Distribution Account

Case Brief

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Parties

Lynette Doreen Gillow

Applicant

Clifton Versfeld

Respondent

Neil David Button N.O.

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Motion and Counter Application

Legal Issues

  1. 1 Whether the partnership between the applicant and first respondent must be liquidated in terms of both the settlement agreement and the liquidator's mandate, or only the liquidator's mandate.
  2. 2 Whether the liquidator's mandate should be rectified to accord with the applicant's contentions.
  3. 3 Whether annexure M constitutes a ruling of the second respondent requiring proceedings within fourteen days.

Ratio Decidendi

The court held that the partnership between the applicant and first respondent must be liquidated in terms of both the settlement agreement and the liquidator's mandate. The liquidator's mandate does not override the settlement agreement but is supplementary to it. The intention of the parties, as reflected in the settlement agreement, was to retain certain assets individually and only liquidate those not specifically retained. The liquidator's powers must be interpreted in light of the agreement and the context in which both documents were created. The court found that annexure M did not constitute a ruling by the liquidator, and therefore the time bar for launching the application did...

Court Disposition

The applicant's application succeeds. The first respondent's counter-application is dismissed with costs. The liquidation and distribution of the partnership estate must be conducted in accordance with both the settlement agreement and the liquidator's mandate, as rectified by the court.

Orders

  • The first respondent's counter-application is dismissed with costs.
  • It is declared that clause 19 of the settlement agreement means the second respondent must only liquidate assets of the universal partnership not retained by either party under the agreement.