Starbuck N.O and Another v Friebus and Others (38540/20) [2021] ZAGPPHC 276 (18 March 2021)

Starbuck N.O and Another v Friebus and Others (38540/20) [2021] ZAGPPHC 276 (18 March 2021)

The court found that the first respondent had, under oath, consented to the trustees dealing with her undivided half share in the property as part of the voluntary surrender of her husband's insolvent estate. This consent was binding and vested the property in the trustees, who were duly authorised by the creditors' meeting to sell the property. The first respondent's subsequent refusal to sign transfer documents and her objections were without merit, as she had already renounced her rights in respect of the property. The trustees acted within their powers and in accordance with the law. The point in limine of lis pendens was dismissed as there was no pending dispute. The applicants were...

Citation
[2021] ZAGPPHC 276
Parties
Applicant: C.A. Starbuck NO; Applicant: M. Roux NO; Respondent: H.W. Friebus; Respondent: Changing Tides (Pty) Ltd; Respondent: The Master of the High Court
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 March 2021
Case Number
38540/20
Procedural Posture
Urgent Application / Application for Termination of Joint Ownership and Transfer of Property
Outcome
Application granted. Joint ownership terminated. Transfer of property authorised. Costs awarded against first respondent.
Judges
C.P. Rabie
Legal Topics
Joint Ownership Termination, Sale of Insolvent Estate Property, Trustee Authority, Transfer of Property, Costs Order
Land and Property Civil Procedure Joint Ownership Termination Sale of Insolvent Estate Property Trustee Authority Transfer of Property Costs Order

Case Brief

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Parties

C.A. Starbuck NO

Applicant

M. Roux NO

Applicant

H.W. Friebus

Respondent

Changing Tides (Pty) Ltd

Respondent

The Master of the High Court

Respondent

Procedural Posture

Urgent Application / Application for Termination of Joint Ownership and Transfer of Property

Legal Issues

  1. 1 Whether the joint ownership of the property held by the first respondent should be terminated to allow transfer to the purchasers.
  2. 2 Whether the trustees were authorised to sell the property without the first respondent's consent.
  3. 3 Whether the first respondent's prior consent under oath in the voluntary surrender application is binding.

Ratio Decidendi

The court found that the first respondent had, under oath, consented to the trustees dealing with her undivided half share in the property as part of the voluntary surrender of her husband's insolvent estate. This consent was binding and vested the property in the trustees, who were duly authorised by the creditors' meeting to sell the property. The first respondent's subsequent refusal to sign transfer documents and her objections were without merit, as she had already renounced her rights in respect of the property. The trustees acted within their powers and in accordance with the law. The point in limine of lis pendens was dismissed as there was no pending dispute. The applicants were...

Court Disposition

Application granted. Joint ownership terminated. Transfer of property authorised. Costs awarded against first respondent.

Orders

  • The joint ownership in Erf 462 Lilianton Extension 1 Township, Registration Division IR, Province of Gauteng, held by deed of transfer T 9935/2013, is terminated.
  • The first respondent is ordered to sign all documentation necessary to effect transfer within 20 days of service of this order, failing which the Sheriff is authorised to sign on her behalf.