Hilne v Hilne (10097/2008) [2008] ZAWCHC 67 (27 November 2008)

Hilne v Hilne (10097/2008) [2008] ZAWCHC 67 (27 November 2008)

The court found that the respondent committed an act of insolvency as contemplated by section 8(b) of the Insolvency Act by failing to satisfy the judgment or indicate sufficient disposable property to the sheriff, as evidenced by the nulla bona return. The respondent's transfer of immovable property was suspicious and not credibly explained. The court held that factual solvency does not preclude sequestration where an act of insolvency has been committed. The applicant demonstrated that sequestration would be to the advantage of creditors, as multiple claims remain unpaid and asset disposal has occurred without proper oversight. Accordingly, the requirements for provisional sequestration...

Citation
[2008] ZAWCHC 67
Parties
Applicant: Kim Theresa Kathleen Hilne; Respondent: Peter John Hilne
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 November 2008
Case Number
10097/2008
Procedural Posture
Urgent Application / Application for Provisional Sequestration; Opposed Hearing
Outcome
Provisional sequestration of the respondent's estate granted; costs awarded against respondent.
Judges
Allie
Legal Topics
Provisional Sequestration, Act of Insolvency, Divorce Order Enforcement, Nulla Bona Return, Advantage to Creditors
Family and Children Civil Procedure Provisional Sequestration Act of Insolvency Divorce Order Enforcement Nulla Bona Return Advantage to Creditors

Case Brief

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Parties

Kim Theresa Kathleen Hilne

Applicant

Peter John Hilne

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration; Opposed Hearing

Legal Issues

  1. 1 Whether the respondent committed an act of insolvency as contemplated by section 8(b) of the Insolvency Act.
  2. 2 Whether the applicant is entitled to a provisional sequestration order based on the nulla bona return.
  3. 3 Whether the sequestration will be to the advantage of creditors.

Ratio Decidendi

The court found that the respondent committed an act of insolvency as contemplated by section 8(b) of the Insolvency Act by failing to satisfy the judgment or indicate sufficient disposable property to the sheriff, as evidenced by the nulla bona return. The respondent's transfer of immovable property was suspicious and not credibly explained. The court held that factual solvency does not preclude sequestration where an act of insolvency has been committed. The applicant demonstrated that sequestration would be to the advantage of creditors, as multiple claims remain unpaid and asset disposal has occurred without proper oversight. Accordingly, the requirements for provisional sequestration...

Court Disposition

Provisional sequestration of the respondent's estate granted; costs awarded against respondent.

Orders

  • The estate of the respondent is placed under provisional sequestration in the hands of the Master of the High Court.
  • The respondent shall show cause at 10h00 on Tuesday, 13 January 2009 or as soon thereafter as the matter can be heard why the court should not order final sequestration.