L.A v E.A and Another (11046/2014) [2018] ZAKZPHC 13 (9 May 2018)

L.A v E.A and Another (11046/2014) [2018] ZAKZPHC 13 (9 May 2018)

The court found that the applicant had genuine concerns regarding the valuation of the joint estate and was entitled to funds to obtain independent expert assistance. The liquidator's refusal to release funds, coupled with her irregular approach to a judge in chambers without notice to the applicant, breached the applicant's right of access to court and failed to discharge her fiduciary duties. The respondents' conduct was found to lack bona fides and amounted to gross negligence, justifying an order for costs de bonis propriis. The estate was sufficiently large to accommodate the interim payment without prejudice to the respondents, and the applicant's request was reasonable and...

Citation
[2018] ZAKZPHC 13
Parties
Applicant: L A; Respondent: E A; Respondent: Frances Leppan
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
9 May 2018
Case Number
11046/2014
Procedural Posture
Urgent Application / Application for Release of Funds From Joint Estate for Expert Valuations
Outcome
Application granted. The second respondent is ordered to pay the applicant R1,000,000 from the joint estate. Costs awarded against both respondents de bonis propriis, jointly and severally.
Judges
Mbatha
Legal Topics
Liquidation of Joint Estate, Fiduciary Duty of Liquidator, Contribution Towards Costs, Right of Access to Court
Family and Children Civil Procedure Liquidation of Joint Estate Fiduciary Duty of Liquidator Contribution Towards Costs Right of Access to Court

Case Brief

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Parties

L A

Applicant

E A

Respondent

Frances Leppan

Respondent

Procedural Posture

Urgent Application / Application for Release of Funds From Joint Estate for Expert Valuations

Legal Issues

  1. 1 Whether the liquidator is obliged to advance funds to the applicant for expert valuations of the joint estate assets.
  2. 2 Whether the liquidator's approach to a judge in chambers without notice to the applicant was irregular and breached the applicant's right of access to court.
  3. 3 Whether the respondents should be ordered to pay costs de bonis propriis for their conduct.

Ratio Decidendi

The court found that the applicant had genuine concerns regarding the valuation of the joint estate and was entitled to funds to obtain independent expert assistance. The liquidator's refusal to release funds, coupled with her irregular approach to a judge in chambers without notice to the applicant, breached the applicant's right of access to court and failed to discharge her fiduciary duties. The respondents' conduct was found to lack bona fides and amounted to gross negligence, justifying an order for costs de bonis propriis. The estate was sufficiently large to accommodate the interim payment without prejudice to the respondents, and the applicant's request was reasonable and...

Court Disposition

Application granted. The second respondent is ordered to pay the applicant R1,000,000 from the joint estate. Costs awarded against both respondents de bonis propriis, jointly and severally.

Orders

  • The Second Respondent is directed to pay the Applicant, out of funds forming part of the joint estate, the sum of R1,000,000.
  • Upon payment, the Second Respondent shall debit the Applicant’s account for R1,000,000 when preparing the final liquidation and distribution account of the joint estate.