Van den Heever N.O. and Others v Louw and Another (M285/17) [2017] ZANWHC 52 (13 July 2017)

Van den Heever N.O. and Others v Louw and Another (M285/17) [2017] ZANWHC 52 (13 July 2017)

The court found that the intervening parties, as members and sureties of the Close Corporation in liquidation, had a direct and substantial interest in the urgent application brought by the liquidators, as the extension of powers sought would enable the sale of a major asset and potentially affect their liability. The applicants were aware of this interest but failed to join the intervening parties or disclose their position to the court, contrary to the requirements for ex parte applications. However, the application was withdrawn before any order was granted, and there was no conduct by the applicants warranting a punitive costs order. The intervening parties were entitled to their...

Citation
[2017] ZANWHC 52
Parties
Applicant: Theodore Wilhelm Van den Heever N.O.; Applicant: Ottlie Anton Noordman N.O.; Applicant: Louisa Sibiya N.O.; Respondent: Lennox Antonie Louw; Respondent: Stephanus Jacobus Daniel Swart
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
13 July 2017
Case Number
M285/17
Procedural Posture
Urgent Application / Costs Determination Following Withdrawal of Urgent Ex Parte Application
Outcome
Costs awarded to the intervening parties on a party and party scale, including costs occasioned by the postponement of 15 June 2017.
Judges
D.I Matlapeng
Legal Topics
Joinder of Parties, Ex Parte Applications, Costs Award, Liquidation Proceedings
Civil Procedure Joinder of Parties Ex Parte Applications Costs Award Liquidation Proceedings

Case Brief

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Parties

Theodore Wilhelm Van den Heever N.O.

Applicant

Ottlie Anton Noordman N.O.

Applicant

Louisa Sibiya N.O.

Applicant

Lennox Antonie Louw

Respondent

Stephanus Jacobus Daniel Swart

Respondent

Procedural Posture

Urgent Application / Costs Determination Following Withdrawal of Urgent Ex Parte Application

Legal Issues

  1. 1 Whether the intervening parties had a direct and substantial interest in the urgent ex parte application brought by the liquidators.
  2. 2 Whether the applicants were justified in proceeding ex parte without joining the intervening parties.
  3. 3 Whether the intervening parties are entitled to a costs order, and if so, whether on a punitive scale.

Ratio Decidendi

The court found that the intervening parties, as members and sureties of the Close Corporation in liquidation, had a direct and substantial interest in the urgent application brought by the liquidators, as the extension of powers sought would enable the sale of a major asset and potentially affect their liability. The applicants were aware of this interest but failed to join the intervening parties or disclose their position to the court, contrary to the requirements for ex parte applications. However, the application was withdrawn before any order was granted, and there was no conduct by the applicants warranting a punitive costs order. The intervening parties were entitled to their...

Court Disposition

Costs awarded to the intervening parties on a party and party scale, including costs occasioned by the postponement of 15 June 2017.

Orders

  • The applicants in their representative capacity are liable to pay the costs of the intervening parties on party and party scale, including the costs occasioned by the postponement of 15 June 2017.