Pollock NO and Another v Simcha Properties 2 CC and Others (12264/2010) [2010] ZAGPJHC 48 (4 June 2010)

Pollock NO and Another v Simcha Properties 2 CC and Others (12264/2010) [2010] ZAGPJHC 48 (4 June 2010)

The court found that the applicants, as liquidators, had established a prima facie right to interim relief. The evidence, though incomplete and partly hearsay, indicated that the dispositions of Willaway Extension 14 and Bluehills Extension 30 by the insolvent to the first and third respondents were part of a scheme prejudicing concurrent creditors. The directors of the insolvent and the respondents were identical, and the sale prices were below market value, depriving creditors of the chance to direct the disposition of assets. The urgency of the matter justified the use of hearsay and incomplete expert evidence for interim relief. The harm to the applicants from the continued sale and...

Citation
[2010] ZAGPJHC 48
Parties
Applicant: Richard Keay Pollock, N.O.; Applicant: Fazlul Huq Suliman, N.O.; Respondent: Simcha Properties 2 CC; Respondent: Simcha Properties 20 CC; Respondent: Simcha Properties 17 CC; Respondent: Registrar of Deeds, Pretoria; Respondent: The Master of the High Court, Johannesburg; Respondent: Investec Bank Limited; Respondent: BFPG Devco (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 June 2010
Case Number
12264/2010
Procedural Posture
Urgent Application / Interim Interdict Pending Final Determination of Action
Outcome
Interim interdict granted in favour of the applicants pending final determination of the main action.
Judges
Lamont
Legal Topics
Interim Interdict, Impeachable Transaction, Insolvency Act Sections 26 29 30 31, Liquidation, Preferential Creditor, Loss of Chance
Civil Procedure Commercial and Corporate Land and Property Interim Interdict Impeachable Transaction Insolvency Act Sections 26 29 30 31 Liquidation Preferential Creditor +1 more

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Parties

Richard Keay Pollock, N.O.

Applicant

Fazlul Huq Suliman, N.O.

Applicant

Simcha Properties 2 CC

Respondent

Simcha Properties 20 CC

Respondent

Simcha Properties 17 CC

Respondent

Registrar of Deeds, Pretoria

Respondent

The Master of the High Court, Johannesburg

Respondent

Investec Bank Limited

Respondent

BFPG Devco (Pty) Limited

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Final Determination of Action

Legal Issues

  1. 1 Whether the applicants have established a prima facie right to interim relief pending the outcome of the main action.
  2. 2 Whether the dispositions of property by the insolvent to the respondents are impeachable transactions under the Insolvency Act.
  3. 3 Whether the urgency of the application justifies the use of hearsay and incomplete evidence.

Ratio Decidendi

The court found that the applicants, as liquidators, had established a prima facie right to interim relief. The evidence, though incomplete and partly hearsay, indicated that the dispositions of Willaway Extension 14 and Bluehills Extension 30 by the insolvent to the first and third respondents were part of a scheme prejudicing concurrent creditors. The directors of the insolvent and the respondents were identical, and the sale prices were below market value, depriving creditors of the chance to direct the disposition of assets. The urgency of the matter justified the use of hearsay and incomplete expert evidence for interim relief. The harm to the applicants from the continued sale and...

Court Disposition

Interim interdict granted in favour of the applicants pending final determination of the main action.

Orders

  • Pending the final determination of the action instituted by the applicants under case no 15263/2010, the first, second and third respondents are interdicted and restrained from selling and the fourth respondent from executing or attesting any deed of transfer for either the whole of Willaway Extension 14 and/or Blue...
  • The first and third respondents are directed to jointly and severally pay the costs of the applicants, including the costs consequent upon the employ of two counsel.