keevy N.O and Others v Born Free Investments 364 (Pty) Ltd, Keevy N.O and Others v Born Free Investments 364 (Pty) Ltd (42316/10,42315/10) [2010] ZAGPPHC 212 (3 December 2010)
The court found that the cessions by Central Lake Trading 256 (Pty) Ltd and Summer Season Trading 49 (Pty) Ltd to Born Free Investments 364 (Pty) Ltd were dispositions not made for value. The written memoranda of cession contained no reference to any value or method for determining value, and the respondent's affidavits failed to provide credible evidence of any agreement regarding value or that value was given. The respondent's version was vague, unconvincing, and did not raise a real, genuine, or bona fide dispute of fact. Applying the Plascon-Evans rule and the principles from Wightman and Breitenbach, the court rejected the respondent's version on the papers. All statutory...
- Citation
- [2010] ZAGPPHC 212
- Parties
- Applicant: Karen Keevy N.O.; Applicant: Rischard Cassim N.O.; Applicant: Lebogang Michael Moloto N.O.; Applicant: Solomon Stanley Isake Boikanyo N.O.; Applicant: Central Lake Trading 256 (Pty) Ltd (in liquidation); Applicant: Summer Season Trading 49 (Pty) Ltd (in liquidation); Respondent: Born Free Investments 364 (Pty) Ltd
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Judgment Date
- 3 December 2010
- Case Number
- 42316/10,42315/10
- Procedural Posture
- Review Application / Final Judgment on Application
- Outcome
- Applications granted; cessions set aside; respondent ordered to pay costs.
- Judges
- Southwood
- Legal Topics
- Insolvency Act Section 26, Companies Act Section 340, Disposition Without Value, Liquidation, Setting Aside Cession
Case Brief
Summary, issues, holding and outcome
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Parties
Karen Keevy N.O.
Applicant
Rischard Cassim N.O.
Applicant
Lebogang Michael Moloto N.O.
Applicant
Solomon Stanley Isake Boikanyo N.O.
Applicant
Central Lake Trading 256 (Pty) Ltd (in liquidation)
Applicant
Summer Season Trading 49 (Pty) Ltd (in liquidation)
Applicant
Born Free Investments 364 (Pty) Ltd
Respondent
Procedural Posture
Review Application / Final Judgment on Application
Legal Issues
- 1 Whether the cessions by the companies to the respondent were dispositions not made for value and thus liable to be set aside under section 26(1)(b) of the Insolvency Act and section 340 of the Companies Act.
- 2 Whether the respondent has established a real, genuine or bona fide dispute of fact regarding the giving of value for the cessions.
- 3 Whether the applicants are entitled to final relief setting aside the cessions.
Ratio Decidendi
The court found that the cessions by Central Lake Trading 256 (Pty) Ltd and Summer Season Trading 49 (Pty) Ltd to Born Free Investments 364 (Pty) Ltd were dispositions not made for value. The written memoranda of cession contained no reference to any value or method for determining value, and the respondent's affidavits failed to provide credible evidence of any agreement regarding value or that value was given. The respondent's version was vague, unconvincing, and did not raise a real, genuine, or bona fide dispute of fact. Applying the Plascon-Evans rule and the principles from Wightman and Breitenbach, the court rejected the respondent's version on the papers. All statutory...
Court Disposition
Applications granted; cessions set aside; respondent ordered to pay costs.
Orders
- The cession by Central Lake Trading 256 (Pty) Ltd to the respondent on 6 June 2009 of Central Lake Trading 256 (Pty) Ltd's claims and rights of action against FRB is set aside.
- The respondent is ordered to pay the costs of the application under case number 42316/10.
Full Case Text
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