Levitan v Mopana Properties 69 (Pty) Ltd and Others (09/46494) [2009] ZAGPJHC 103 (10 December 2009)

Levitan v Mopana Properties 69 (Pty) Ltd and Others (09/46494) [2009] ZAGPJHC 103 (10 December 2009)

The court found that the voluntary winding-up of Mopana Properties 69 (Pty) Ltd was a stratagem by the second respondent to defeat the applicant's security and prejudice both the applicant and Standard Bank. The settlement agreement did not contravene section 38 of the Companies Act, as it did not involve the...

Source-derived case information.

Citation
[2009] ZAGPJHC 103
Parties
Applicant: Gary Levitan; Respondent: Mopana Properties 69 (Pty) Ltd; Respondent: Colin Steinberg; Respondent: Master of the High Court, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 December 2009
Case Number
09/46494
Procedural Posture
Urgent Application / Application to Set Aside or Stay Winding Up Proceedings
Outcome
Application granted; winding-up proceedings set aside; counter application dismissed; punitive costs order against second respondent.
Judges
P.A. Meyer
Legal Topics
Winding Up of Company, Shareholders Agreement, Financial Assistance, Non Joinder, Punitive Costs
Commercial and Corporate Civil Procedure Winding Up of Company Shareholders Agreement Financial Assistance Non Joinder Punitive Costs

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Parties

Gary Levitan

Applicant

Mopana Properties 69 (Pty) Ltd

Respondent

Colin Steinberg

Respondent

Master of the High Court, Johannesburg

Respondent

Procedural Posture

Urgent Application / Application to Set Aside or Stay Winding Up Proceedings

Legal Issues

  1. 1 Whether the voluntary winding-up of Mopana Properties 69 (Pty) Ltd should be set aside under section 354 of the Companies Act.
  2. 2 Whether the settlement agreement constituted unlawful financial assistance under section 38 of the Companies Act.
  3. 3 Whether there was a material non-joinder of the joint liquidators.

Ratio Decidendi

The court found that the voluntary winding-up of Mopana Properties 69 (Pty) Ltd was a stratagem by the second respondent to defeat the applicant's security and prejudice both the applicant and Standard Bank. The settlement agreement did not contravene section 38 of the Companies Act, as it did not involve the company providing financial assistance for the purchase of its own shares, but rather the cancellation of prior agreements and assumption of debt. The alleged existence of other concurrent creditors was unsubstantiated. The company in liquidation was correctly cited, and the joint liquidators were served, negating any material non-joinder. The counter application for an interdict was...

Court Disposition

Application granted; winding-up proceedings set aside; counter application dismissed; punitive costs order against second respondent.

Orders

  • All proceedings in relation to the winding-up of Mopana Properties 69 (Pty) Ltd (Registration No. 2004/034772/07) are hereby set aside in terms of section 354(1) of the Companies Act 61 of 1973.
  • The counter application is dismissed with costs.