Venter v Barak Fund SPC Limited and Another In re: EBM Project (Pty) Ltd and Another v Barak Fund SPC Limited In re: The Hollard Insurance Company Limited v The Master of the High Court and Others (2021/18884) [2021] ZAGPJHC 529 (13 October 2021)

Venter v Barak Fund SPC Limited and Another In re: EBM Project (Pty) Ltd and Another v Barak Fund SPC Limited In re: The Hollard Insurance Company Limited v The Master of the High Court and Others (2021/18884) [2021] ZAGPJHC 529 (13 October 2021)

The application for leave to appeal was dismissed because Mr Venter failed to demonstrate any misdirection or irregularity in the exercise of the court's discretion to award costs de bonis propriis on an attorney and client scale. The court found that Mr Venter was fully aware that a personal costs order was sought against him, had ample opportunity to respond, and was represented by counsel. The further evidence affidavit did not alter the factual or legal basis for the costs order. The notice requirements under the Companies Act were not met, as notice was given ex post facto and did not enable affected parties to exercise their rights. The court held that its discretion in awarding...

Citation
[2021] ZAGPJHC 529
Parties
Applicant: Kenneth Colin Venter; Respondent: Barak Fund SPC Limited; Respondent: The Hollard Insurance Company Limited; Respondent: EBM Project (Pty) Ltd (in business rescue); Respondent: The Master of the High Court; Respondent: The Companies and Intellectual Property Commission; Respondent: All affected parties listed in Annexure ‘X’
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 October 2021
Case Number
2021/18884
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Costs Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
I Opperman
Legal Topics
Costs Orders, Business Rescue Practitioner Liability, Ex Parte Applications, Notice Requirements, Attorney and Client Scale, Joinder of Parties
Civil Procedure Commercial and Corporate Costs Orders Business Rescue Practitioner Liability Ex Parte Applications Notice Requirements Attorney and Client Scale Joinder of Parties

Case Brief

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Parties

Kenneth Colin Venter

Applicant

Barak Fund SPC Limited

Respondent

The Hollard Insurance Company Limited

Respondent

EBM Project (Pty) Ltd (in business rescue)

Respondent

The Master of the High Court

Respondent

The Companies and Intellectual Property Commission

Respondent

All affected parties listed in Annexure ‘X’

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Costs Order

Legal Issues

  1. 1 Whether leave to appeal should be granted against a punitive costs order made de bonis propriis against Mr Venter.
  2. 2 Whether Mr Venter was afforded adequate notice and opportunity to be heard in his personal capacity before the costs order was made.
  3. 3 Whether the further evidence affidavit submitted by Mr Venter alters the factual or legal basis for the costs order.

Ratio Decidendi

The application for leave to appeal was dismissed because Mr Venter failed to demonstrate any misdirection or irregularity in the exercise of the court's discretion to award costs de bonis propriis on an attorney and client scale. The court found that Mr Venter was fully aware that a personal costs order was sought against him, had ample opportunity to respond, and was represented by counsel. The further evidence affidavit did not alter the factual or legal basis for the costs order. The notice requirements under the Companies Act were not met, as notice was given ex post facto and did not enable affected parties to exercise their rights. The court held that its discretion in awarding...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The further evidence affidavit is received.
  • The application for leave to appeal is dismissed with costs to be payable on the scale as between attorney and client, to include the costs consequent upon the employment of two counsel, where so employed.