SA Retail Properties (Pty) Ltd v Englezakis (66282/18) [2019] ZAGPPHC 235 (20 June 2019)

SA Retail Properties (Pty) Ltd v Englezakis (66282/18) [2019] ZAGPPHC 235 (20 June 2019)

The court found that the applicant had locus standi based on a prior court order and acknowledgment of debt. The respondent, by failing to dispute his indebtedness and admitting liabilities in his affidavit, was found to be insolvent. Alternatively, the respondent committed acts of insolvency through the nulla bona return, which was accepted as prima facie evidence. The respondent's failure to disclose his financial position and assets allowed the court to draw a negative inference. The applicant demonstrated, on a prima facie basis, that sequestration would be to the advantage of creditors, given the existence of undisclosed assets and interests. Accordingly, the requirements for...

Citation
[2019] ZAGPPHC 235
Parties
Applicant: SA Retail Properties (Pty) Ltd; Respondent: Nicola Englezakis
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 June 2019
Case Number
66282/18
Procedural Posture
Urgent Application / Provisional Sequestration Application; Opposed Motion
Outcome
Provisional sequestration granted; respondent's estate placed under the control of the Master of the High Court.
Judges
G Jacobs
Legal Topics
Provisional Sequestration, Insolvency Act Section 9, Locus Standi, Advantage to Creditors, Nulla Bona Return
Civil Procedure Commercial and Corporate Provisional Sequestration Insolvency Act Section 9 Locus Standi Advantage to Creditors Nulla Bona Return

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Parties

SA Retail Properties (Pty) Ltd

Applicant

Nicola Englezakis

Respondent

Procedural Posture

Urgent Application / Provisional Sequestration Application; Opposed Motion

Legal Issues

  1. 1 Whether the applicant has locus standi to bring the sequestration application.
  2. 2 Whether the respondent is insolvent or has committed an act of insolvency under the Insolvency Act.
  3. 3 Whether there is reason to believe that sequestration will be to the advantage of creditors.

Ratio Decidendi

The court found that the applicant had locus standi based on a prior court order and acknowledgment of debt. The respondent, by failing to dispute his indebtedness and admitting liabilities in his affidavit, was found to be insolvent. Alternatively, the respondent committed acts of insolvency through the nulla bona return, which was accepted as prima facie evidence. The respondent's failure to disclose his financial position and assets allowed the court to draw a negative inference. The applicant demonstrated, on a prima facie basis, that sequestration would be to the advantage of creditors, given the existence of undisclosed assets and interests. Accordingly, the requirements for...

Court Disposition

Provisional sequestration granted; respondent's estate placed under the control of the Master of the High Court.

Orders

  • The respondent's estate is provisionally sequestrated and placed in the hands of the Master of the High Court.
  • A rule nisi is issued, returnable on 17 September 2019 at 10h00, calling upon the respondent to show cause why final sequestration should not be ordered.