Standard Bank of South Africa Ltd v ERF 289 Bantry Bay (18997/2008) [2008] ZAWCHC 303 (21 November 2008)
The court found that the applicant had satisfied the requirements for a provisional winding-up order. The respondent did not dispute the debt and failed to provide any proper defence to the claim of commercial insolvency. The section 345 notice was served and elicited no adequate response. The objection to urgency...
Source-derived case information.
- Citation
- [2008] ZAWCHC 303
- Parties
- Applicant: Standard Bank of South Africa Ltd; Respondent: ERF 289 Bantry Bay
- Court
- Western Cape High Court, Cape Town
- Jurisdiction
- South Africa
- Case Number
- 18997/2008
- Procedural Posture
- Urgent Application / Application for Provisional Winding Up Order
- Outcome
- Provisional winding-up order granted.
- Judges
- Gauntlett
- Legal Topics
- Provisional Winding Up, Commercial Insolvency, Section 345 Notice, Urgency, Creditor Rights
Source-derived case record
Summary, issues, holding and outcome
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Parties
Standard Bank of South Africa Ltd
Applicant
ERF 289 Bantry Bay
Respondent
Procedural Posture
Urgent Application / Application for Provisional Winding Up Order
Legal Issues
- 1 Whether the requirements for a provisional winding-up order have been satisfied.
- 2 Whether the respondent is commercially insolvent.
- 3 Whether the matter is urgent and should be entertained by the court.
Ratio Decidendi
The court found that the applicant had satisfied the requirements for a provisional winding-up order. The respondent did not dispute the debt and failed to provide any proper defence to the claim of commercial insolvency. The section 345 notice was served and elicited no adequate response. The objection to urgency was rejected, as urgency is determined by the court's discretion and the procedural history demonstrated sufficient forbearance by the applicant. The respondent's attempt to postpone the matter was found to be unfounded and intended to delay proceedings. The existence of other litigation involving tenants was irrelevant, as there was no contractual relationship between the...
Court Disposition
Provisional winding-up order granted.
Orders
- A provisional winding-up order is issued against the respondent in the terms indicated in the draft marked 'X'.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVESION)
CASE NO: 18997/2008
DATE: 21 NOVEMBER 2008In the matter between:
STANDARD BANK Applicantand
ERF 289 BANTRY BAY Respondent
JUDGMENT
GAUNTLETT, AJ:
[1] In this matter there is an opposed application for a provisional winding-up order. I have read the papers which have been filed on both sides, and considered the oral submissions which have been advanced by counsel for the applicant and respondent respectively.
[2] It is not customary in matters of this kind to seek to hand down full reasons for a ruling of this nature, but it seems to me desirable in the circumstances of this matter that I should do so, at least in brief outline.
[3] I am satisfied that the requirements for a provisional winding-up order are made, and that it is an appropriate case in my judgment for such an order to issue. In this regard, it is important to note that the debt in question is not disputed, and that, as far as I read the papers, there is no proper defence made out to the contention that the respondent is commercially insolvent. It is further important that the notice in terms of section 345 of the Act was served as long ago as 22 October 2008, and elicited at that stage, without proper explanation, no adequate response at alt.
[4] This notwithstanding, objection was made this morning in argument on the basis that the matter is not urgent. It seems to me that this misconceives the positron. As was explained in the Supreme Court of Appeal decision in Commissioner. South African Revenue Services v Hawker Air Services (Ptv) Ltd (approximately 2006), the question of urgency is a matter for the discretionary determination by the Court hearing the matter. It affords no basish as appears to have become the unfortunate practice in certain courts, for the matter not to be entertained at all, and even (in the circumstances of that particular case) to be dismissed.
[5] In the present case, it is quite clear from the procedural history outlined in the papers, that some considerable forbearance has been exercised in relation to the collection of the debt - for that, as counsel for the applicant squarely acknowledged, is the applicant's intention, as it is permitted to do, in instituting these proceedings. The position moreover is as I have indicated, there has been no response, without explanation, to the section 345 notice, nor is there any adequate explanation as to why this application served on 11 November 2008 elicited no evident reaction until today.
[6] In the circumstances, it seems to me that the attempt to procure a postponement of the matter is not well founded, and is calculated to delay. I am not impressed by the argument that there is a web of other litigation relating to the position of tenants. There is no contractual privety between the applicant and those entities, and the proceedings in relation to eviction against them is patently res inter atios acta as far as they are concerned.
[7] As regards the merits of the matter, as I have indicated, in my view a good case is made out and I have accordingly that a provisional winding-up should issue i the terms indicated in the draft marked "X".
GAUNTLETT, A J