Visnenza NO and Another v Partners Consolidated Investments (Pty) Limited (15/37237) [2017] ZAGPJHC 429 (13 December 2017)

Visnenza NO and Another v Partners Consolidated Investments (Pty) Limited (15/37237) [2017] ZAGPJHC 429 (13 December 2017)

The court found that the respondent was unable to pay its debts within the meaning of section 345(1)(c) read with section 344(f) of the Companies Act, 1973. The respondent's financial statements revealed a significant decline in net asset value and investments, with no income generated and ongoing expenses. The respondent failed to provide credible evidence of improved financial performance and did not take the court into its confidence regarding the source of funds used for certain payments. The respondent's inability to pay its debts was further evidenced by its eviction from its principal place of business, compromise agreements with creditors, and reliance on raising capital from...

Citation
[2017] ZAGPJHC 429
Parties
Applicant: Visnenza, Franco Carlo N.O.; Applicant: Dannhauser, Johann N.O.; Respondent: Partners Consolidated Investments (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 December 2017
Case Number
15/37237
Procedural Posture
Winding Up Application / Opposed Application for Provisional Winding Up
Outcome
Application for provisional winding-up granted.
Judges
L T Modiba
Legal Topics
Winding Up of Company, Commercial Insolvency, Shareholder Loans, Locus Standi, Creditor Rights
Commercial and Corporate Civil Procedure Winding Up of Company Commercial Insolvency Shareholder Loans Locus Standi Creditor Rights

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Parties

Visnenza, Franco Carlo N.O.

Applicant

Dannhauser, Johann N.O.

Applicant

Partners Consolidated Investments (Pty) Limited

Respondent

Procedural Posture

Winding Up Application / Opposed Application for Provisional Winding Up

Legal Issues

  1. 1 Whether the amount due by the respondent to the Visnenza Family Trust is due and payable.
  2. 2 Whether the respondent is unable to pay its debts within the meaning of section 344(4) read with 345(1)(c) of the Companies Act, 1973.

Ratio Decidendi

The court found that the respondent was unable to pay its debts within the meaning of section 345(1)(c) read with section 344(f) of the Companies Act, 1973. The respondent's financial statements revealed a significant decline in net asset value and investments, with no income generated and ongoing expenses. The respondent failed to provide credible evidence of improved financial performance and did not take the court into its confidence regarding the source of funds used for certain payments. The respondent's inability to pay its debts was further evidenced by its eviction from its principal place of business, compromise agreements with creditors, and reliance on raising capital from...

Court Disposition

Application for provisional winding-up granted.

Orders

  • The application succeeds.
  • The respondent is placed under provisional winding-up in terms of section 345 of the Companies Act 61 of 1973.