Patel and Others v Fey NO and Others (9318/17) [2017] ZAWCHC 145 (27 November 2017)

Patel and Others v Fey NO and Others (9318/17) [2017] ZAWCHC 145 (27 November 2017)

The applicants failed to pursue their application for removal of the trustees under s59(a) of the Insolvency Act to its logical conclusion, with most abandoning the matter and the second applicant withdrawing. The allegations of impropriety were denied and not substantiated. The notice of withdrawal by the second applicant did not clearly comply with Rule 41(1)(a), but the court found no reliable evidence that the notice of set down was received before the withdrawal. The trustees were entitled to seek a ruling on costs, given the limited tender by the second applicant and the persistence of allegations in the replying affidavit. Fairness and equity require that costs follow the result,...

Citation
[2017] ZAWCHC 145
Parties
Applicant: Fatima Ismail Patel; Applicant: Muhammad Ali Ebrahim; Applicant: Tariq Ismail Patel; Applicant: Tahir Ismail Patel; Applicant: Yusuf Ismail; Respondent: Eileen Margaret Fey N.O.; Respondent: Abduruman Moollajie N.O.; Respondent: The Master of the High Court
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 November 2017
Case Number
9318/17
Procedural Posture
Urgent Application / Application for Removal of Trustees Under S59(a) of the Insolvency Act; Costs Determination After Withdrawal and Abandonment by Applicants
Outcome
Application dismissed. Costs awarded against the applicants jointly and severally on the attorney and client scale.
Judges
Gamble
Legal Topics
Insolvency Act Section 59, Removal of Trustee, Costs Order, Withdrawal of Application, Attorney and Client Costs
Civil Procedure Commercial and Corporate Insolvency Act Section 59 Removal of Trustee Costs Order Withdrawal of Application Attorney and Client Costs

Case Brief

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Parties

Fatima Ismail Patel

Applicant

Muhammad Ali Ebrahim

Applicant

Tariq Ismail Patel

Applicant

Tahir Ismail Patel

Applicant

Yusuf Ismail

Applicant

Eileen Margaret Fey N.O.

Respondent

Abduruman Moollajie N.O.

Respondent

The Master of the High Court

Respondent

Procedural Posture

Urgent Application / Application for Removal of Trustees Under S59(a) of the Insolvency Act; Costs Determination After Withdrawal and Abandonment by Applicants

Legal Issues

  1. 1 Whether the trustees in the insolvent estate should be removed under s59(a) of the Insolvency Act for allegedly accepting improper benefits.
  2. 2 Whether the applicants' withdrawal and abandonment of the application entitles the trustees to a punitive costs order.
  3. 3 Whether the notice of withdrawal by the second applicant complied with Rule 41(1)(a) and the implications for costs.

Ratio Decidendi

The applicants failed to pursue their application for removal of the trustees under s59(a) of the Insolvency Act to its logical conclusion, with most abandoning the matter and the second applicant withdrawing. The allegations of impropriety were denied and not substantiated. The notice of withdrawal by the second applicant did not clearly comply with Rule 41(1)(a), but the court found no reliable evidence that the notice of set down was received before the withdrawal. The trustees were entitled to seek a ruling on costs, given the limited tender by the second applicant and the persistence of allegations in the replying affidavit. Fairness and equity require that costs follow the result,...

Court Disposition

Application dismissed. Costs awarded against the applicants jointly and severally on the attorney and client scale.

Orders

  • The late filing of the respondents' answering affidavit is condoned.
  • The respondents are granted leave to file their supplementary answering affidavit dated 26 October 2017.