Roos NO and Another v Kevin & Lasia Property Investment Bk and Another (30533/01) [2005] ZAGPHC 88 (7 September 2005)

Roos NO and Another v Kevin & Lasia Property Investment Bk and Another (30533/01) [2005] ZAGPHC 88 (7 September 2005)

The court found that the applicants failed to establish that the insolvent company was a 'trader' as defined in section 2 of the Insolvency Act. The company was a property investment entity holding immovable property for capital investment, not for sale or exchange as stock in trade. Building operations were performed by contractors, not by the company itself as a business activity. The Supreme Court of Appeal had already determined that the letting and hiring of immovable property does not fall within the definition of 'trader' for section 34(1) purposes. The applicants' attempt to introduce new facts in the replying affidavit was rejected as unsubstantiated and contrary to their...

Citation
[2005] ZAGPHC 88
Parties
Applicant: Anton Roos NO; Applicant: Pieter Bernardus van Rooyen NO; Respondent: Kevin & Lasia Property Investments BK; Respondent: Absa Bank Beperk
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
7 September 2005
Case Number
30533/01
Procedural Posture
Civil Application / Judgment After Remittal From Supreme Court of Appeal
Outcome
Application dismissed with costs, including costs of 5 and 19 May 2004.
Judges
E M Patel
Legal Topics
Insolvency Act Section 34, Definition of Trader, Ordinary Course of Business, Motion Proceedings, Burden of Proof
Land and Property Civil Procedure Insolvency Act Section 34 Definition of Trader Ordinary Course of Business Motion Proceedings Burden of Proof

Case Brief

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Parties

Anton Roos NO

Applicant

Pieter Bernardus van Rooyen NO

Applicant

Kevin & Lasia Property Investments BK

Respondent

Absa Bank Beperk

Respondent

Procedural Posture

Civil Application / Judgment After Remittal From Supreme Court of Appeal

Legal Issues

  1. 1 Whether the insolvent company was a 'trader' as defined in section 2 of the Insolvency Act for purposes of section 34(1).
  2. 2 Whether the sale of immovable property was void against the liquidators under section 34(1) of the Insolvency Act.
  3. 3 Whether the sale occurred in the ordinary course of business of the company.

Ratio Decidendi

The court found that the applicants failed to establish that the insolvent company was a 'trader' as defined in section 2 of the Insolvency Act. The company was a property investment entity holding immovable property for capital investment, not for sale or exchange as stock in trade. Building operations were performed by contractors, not by the company itself as a business activity. The Supreme Court of Appeal had already determined that the letting and hiring of immovable property does not fall within the definition of 'trader' for section 34(1) purposes. The applicants' attempt to introduce new facts in the replying affidavit was rejected as unsubstantiated and contrary to their...

Court Disposition

Application dismissed with costs, including costs of 5 and 19 May 2004.

Orders

  • The applicants' point in limine to refer the matter to trial is dismissed.
  • The applicants' application is dismissed with costs, such costs to include the costs of 5 and 19 May 2004.