Kurz NO and Another v van den Berg, Kurz NO and Another v van den Berg (10598/12, 10600/12) [2013] ZAKZPHC 51 (17 July 2013)

Kurz NO and Another v van den Berg, Kurz NO and Another v van den Berg (10598/12, 10600/12) [2013] ZAKZPHC 51 (17 July 2013)

The court found that the applicants had established, on a balance of probabilities, a liquidated claim against each respondent exceeding R100. The respondents had committed acts of insolvency by publishing notices of surrender and failing to satisfy judgment debts. Their own statements of affairs demonstrated factual insolvency, with liabilities exceeding assets by over R1 million. The respondents owned unencumbered assets sufficient to yield a significant dividend to concurrent creditors after sequestration costs. The respondents' arguments and counterclaims were irrelevant to the requirements for opposing final sequestration and did not constitute valid defences. The court was satisfied...

Citation
[2013] ZAKZPHC 51
Parties
Applicant: Brian Lambert Kurz N.O.; Applicant: Mark John Perrow N.O.; Respondent: Jennifer Ann van den Berg; Respondent: Jan Albert Jacobus van den Berg
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
17 July 2013
Case Number
10598/12, 10600/12
Procedural Posture
Sequestration Application / Final Order After Provisional Sequestration and Return Date of Rule Nisi
Outcome
Final sequestration orders granted against both respondents; counter applications dismissed with costs.
Judges
Stretch AJ
Legal Topics
Final Sequestration, Insolvency Act Section 12, Liquidated Claim, Act of Insolvency, Advantage to Creditors
Civil Procedure Final Sequestration Insolvency Act Section 12 Liquidated Claim Act of Insolvency Advantage to Creditors

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Parties

Brian Lambert Kurz N.O.

Applicant

Mark John Perrow N.O.

Applicant

Jennifer Ann van den Berg

Respondent

Jan Albert Jacobus van den Berg

Respondent

Procedural Posture

Sequestration Application / Final Order After Provisional Sequestration and Return Date of Rule Nisi

Legal Issues

  1. 1 Whether the applicants have established a liquidated claim against each respondent of not less than R100.
  2. 2 Whether the respondents have committed an act of insolvency or are factually insolvent.
  3. 3 Whether there is reason to believe that sequestration will be to the advantage of the creditors.

Ratio Decidendi

The court found that the applicants had established, on a balance of probabilities, a liquidated claim against each respondent exceeding R100. The respondents had committed acts of insolvency by publishing notices of surrender and failing to satisfy judgment debts. Their own statements of affairs demonstrated factual insolvency, with liabilities exceeding assets by over R1 million. The respondents owned unencumbered assets sufficient to yield a significant dividend to concurrent creditors after sequestration costs. The respondents' arguments and counterclaims were irrelevant to the requirements for opposing final sequestration and did not constitute valid defences. The court was satisfied...

Court Disposition

Final sequestration orders granted against both respondents; counter applications dismissed with costs.

Orders

  • The estate of Jennifer Ann van den Berg is placed under final sequestration in the hands of the Master of this Court.
  • The costs of the application for sequestration shall be costs in the sequestration.