Hans Marx Eiendomme (Pty) Limited and Others v Absa Bank Limited (M105/2014, M107/2014, M108/2014 ,M109/2014) [2015] ZANWHC 13 (26 March 2015)

Hans Marx Eiendomme (Pty) Limited and Others v Absa Bank Limited (M105/2014, M107/2014, M108/2014 ,M109/2014) [2015] ZANWHC 13 (26 March 2015)

The court found that the applicants conceded their commercial insolvency, which entitled the respondent to final liquidation orders. The alleged cause of insolvency by third parties does not affect the respondent's entitlement. The rescission of the preservation order did not remove commercial insolvency, as the applicants remained unable to pay debts from ordinary business activities. The court held that the ability to sell assets does not equate to commercial solvency and that creditors are not obliged to grant time for payment. The applicants failed to demonstrate reasonable prospects of success on appeal, and the application for leave to appeal was dismissed.

Citation
[2015] ZANWHC 13
Parties
Applicant: Hans Marx Eiendomme (Pty) Limited; Applicant: Vaw Beleggings (Pty) Limited; Applicant: Nestham Trading CC; Applicant: Re Portion 108 Waterkloof; Respondent: Absa Bank Limited
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
26 March 2015
Case Number
M105/2014, M107/2014, M108/2014, M109/2014
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Final Liquidation Orders
Outcome
Applications for leave to appeal the final liquidation orders are dismissed.
Judges
R D Hendricks
Legal Topics
Company Liquidation, Commercial Insolvency, Leave to Appeal, Creditor Rights
Civil Procedure Banking and Finance Company Liquidation Commercial Insolvency Leave to Appeal Creditor Rights

Case Brief

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Parties

Hans Marx Eiendomme (Pty) Limited

Applicant

Vaw Beleggings (Pty) Limited

Applicant

Nestham Trading CC

Applicant

Re Portion 108 Waterkloof

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Final Liquidation Orders

Legal Issues

  1. 1 Whether the applicants have reasonable prospects of success on appeal against the final liquidation orders.
  2. 2 Whether commercial insolvency caused by third parties affects entitlement to liquidation.
  3. 3 Whether rescission of a preservation order removes commercial insolvency.

Ratio Decidendi

The court found that the applicants conceded their commercial insolvency, which entitled the respondent to final liquidation orders. The alleged cause of insolvency by third parties does not affect the respondent's entitlement. The rescission of the preservation order did not remove commercial insolvency, as the applicants remained unable to pay debts from ordinary business activities. The court held that the ability to sell assets does not equate to commercial solvency and that creditors are not obliged to grant time for payment. The applicants failed to demonstrate reasonable prospects of success on appeal, and the application for leave to appeal was dismissed.

Court Disposition

Applications for leave to appeal the final liquidation orders are dismissed.

Orders

  • The applications for leave to appeal the final orders of liquidation in matters numbers M105/14, M107/14, M108/14 and M109/14 are dismissed.
  • The costs of the applications for leave to appeal are to be costs in the liquidations of the respondent companies.