Lewis Group Limited v Woollam and Others (17199/2016) [2017] ZAWCHC 15 (1 March 2017)

Lewis Group Limited v Woollam and Others (17199/2016) [2017] ZAWCHC 15 (1 March 2017)

A person who has made a demand under section 165(2) of the Companies Act may withdraw that demand at any time, as there is no statutory prohibition or practical reason to prevent withdrawal. The withdrawal renders any pending application to set aside the demand under section 165(3) moot, except as to costs. The court will not determine the merits of the withdrawn demand or issue a declaratory order, as the controversy is no longer live and such relief would be advisory. Costs orders must reflect the stage at which the withdrawal occurred and the conduct of the parties, with the applicant entitled to costs up to the date when the matter became moot and the respondent entitled to a portion...

Citation
[2017] ZAWCHC 15
Parties
Applicant: Lewis Group Limited; Respondent: David Farring Woollam; Respondent: Johan Enslin; Respondent: Leslie Alan Davies; Respondent: David Morris Nurek; Respondent: Hilton Saven
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 March 2017
Case Number
17199/2016
Procedural Posture
Review Application / Application to Set Aside Demand Under S 165(3) of the Companies Act
Outcome
Application to set aside the demand is rendered moot by the withdrawal of the demand. Costs orders are made as specified.
Judges
A.G. Binns-Ward
Legal Topics
Companies Act Section 165, Derivative Actions, Withdrawal of Demand, Costs Orders, Declaratory Relief
Commercial and Corporate Civil Procedure Companies Act Section 165 Derivative Actions Withdrawal of Demand Costs Orders Declaratory Relief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Lewis Group Limited

Applicant

David Farring Woollam

Respondent

Johan Enslin

Respondent

Leslie Alan Davies

Respondent

David Morris Nurek

Respondent

Hilton Saven

Respondent

Procedural Posture

Review Application / Application to Set Aside Demand Under S 165(3) of the Companies Act

Legal Issues

  1. 1 Is a demander entitled to withdraw a demand made under section 165(2) of the Companies Act without the company's consent or leave of the court?
  2. 2 Does the withdrawal of the demand render the application to set aside the demand moot, except as to costs?
  3. 3 Is the applicant entitled to a declaratory order regarding the merits of the withdrawn demand?

Ratio Decidendi

A person who has made a demand under section 165(2) of the Companies Act may withdraw that demand at any time, as there is no statutory prohibition or practical reason to prevent withdrawal. The withdrawal renders any pending application to set aside the demand under section 165(3) moot, except as to costs. The court will not determine the merits of the withdrawn demand or issue a declaratory order, as the controversy is no longer live and such relief would be advisory. Costs orders must reflect the stage at which the withdrawal occurred and the conduct of the parties, with the applicant entitled to costs up to the date when the matter became moot and the respondent entitled to a portion...

Court Disposition

Application to set aside the demand is rendered moot by the withdrawal of the demand. Costs orders are made as specified.

Orders

  • The withdrawal by the first respondent of his demand in terms of section 165(2) of the Companies Act 71 of 2008 served on the applicant on 22 August 2016 is noted.
  • The first respondent shall pay the applicant's costs of suit in the application to have the demand set aside in terms of section 165(3) of the Companies Act incurred up to 30 January 2017 (excluding the costs attendant on drafting the affidavit of Kaanit Abarder, jurat 30 January 2017), such costs to include the...