Olivier NO and Others v Stewart NO and Others (2020/37190) [2023] ZAGPJHC 1408 (5 December 2023)

Olivier NO and Others v Stewart NO and Others (2020/37190) [2023] ZAGPJHC 1408 (5 December 2023)

The court found that the plaintiffs failed to prove, on a balance of probabilities, that the R600,000.00 advanced to Richoil emanated from the Olyfboom Trust. The approved annual financial statements of both Richoil and the Trust for the relevant years did not reflect the loan as owed to the Trust but rather to Chartpro, and the only loan reflected as owed to the Trust related to a different property (erf 9[...]). The plaintiffs' attempt to distance themselves from these financial statements was unsupported by credible evidence, and their reliance on oral statements and expert opinion did not overcome the documentary record. The mortgage bond registered in 2010 was found to secure a new...

Citation
[2023] ZAGPJHC 1408
Parties
Plaintiff: Gert Cornelis Olivier N.O.; Plaintiff: Zachryda Gertruida Rabie Olivier N.O.; Plaintiff: Cornelis Wilhelmus Olivier N.O.; Plaintiff: Frederik Petrus Senekal Olivier N.O.; Defendant: Michael Lawrence Stewart N.O.; Defendant: Lucas Masuthu N.O.; Defendant: The Master of the High Court Gauteng Division; Defendant: The Marina Martinique Home Owners Association
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 December 2023
Case Number
2020/37190
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiffs' action dismissed with costs, including costs of counsel.
Judges
Meiring
Legal Topics
Insolvency Act Section 45, Proof of Claims, Liquidation and Distribution Account, Mortgage Bond Security
Civil Procedure Banking and Finance Insolvency Act Section 45 Proof of Claims Liquidation and Distribution Account Mortgage Bond Security

Case Brief

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Parties

Gert Cornelis Olivier N.O.

Plaintiff

Zachryda Gertruida Rabie Olivier N.O.

Plaintiff

Cornelis Wilhelmus Olivier N.O.

Plaintiff

Frederik Petrus Senekal Olivier N.O.

Plaintiff

Michael Lawrence Stewart N.O.

Defendant

Lucas Masuthu N.O.

Defendant

The Master of the High Court Gauteng Division

Defendant

The Marina Martinique Home Owners Association

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the plaintiffs have established, on a balance of probabilities, that the R600,000.00 advanced to Richoil emanated from the Olyfboom Trust.
  2. 2 Whether the mortgage bond registered over erf 1[...] in 2010 secured a historic loan from the Olyfboom Trust or a new loan advanced in 2010.
  3. 3 Whether the claim disallowed by the Master should be admitted in the liquidation and distribution account of Richoil.

Ratio Decidendi

The court found that the plaintiffs failed to prove, on a balance of probabilities, that the R600,000.00 advanced to Richoil emanated from the Olyfboom Trust. The approved annual financial statements of both Richoil and the Trust for the relevant years did not reflect the loan as owed to the Trust but rather to Chartpro, and the only loan reflected as owed to the Trust related to a different property (erf 9[...]). The plaintiffs' attempt to distance themselves from these financial statements was unsupported by credible evidence, and their reliance on oral statements and expert opinion did not overcome the documentary record. The mortgage bond registered in 2010 was found to secure a new...

Court Disposition

Plaintiffs' action dismissed with costs, including costs of counsel.

Orders

  • The action is dismissed.
  • Plaintiffs are ordered to pay the costs of the action, including the costs of counsel.