Webcon Mini Market (Proprietary) limited v Odoko Construction (Proprietary) Limited (39391/2020) [2020] ZAGPPHC 640 (20 November 2020)

Webcon Mini Market (Proprietary) limited v Odoko Construction (Proprietary) Limited (39391/2020) [2020] ZAGPPHC 640 (20 November 2020)

The court found that the applicant's statutory demand was defective and that privileged 'without prejudice' correspondence was improperly relied upon. The respondent had paid the major amounts claimed, leaving only a disputed sum, and had tendered payment if proven correct. The indebtedness was bona fide disputed, and the applicant failed to file a replying affidavit. Under these circumstances, the court held that a winding-up order was not appropriate and that each party should bear its own costs. The application was withdrawn by the applicant, and no punitive costs order was granted.

Citation
[2020] ZAGPPHC 640
Parties
Applicant: Webcon Mini Market (Proprietary) Limited; Respondent: Odoko Construction (Proprietary) Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 November 2020
Case Number
39391/2020
Procedural Posture
Winding Up Application / Final Judgment
Outcome
Application for winding-up withdrawn; each party to pay its own costs.
Judges
Fabricius
Legal Topics
Winding Up of Company, Disputed Indebtedness, Privileged Communication, Costs Order
Commercial and Corporate Winding Up of Company Disputed Indebtedness Privileged Communication Costs Order

Case Brief

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Parties

Webcon Mini Market (Proprietary) Limited

Applicant

Odoko Construction (Proprietary) Limited

Respondent

Procedural Posture

Winding Up Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent is unable to pay its debts as contemplated by section 344(f) of the Companies Act 61 of 1973.
  2. 2 Whether the statutory demand under section 345 was properly delivered and complied with.
  3. 3 Whether privileged 'without prejudice' correspondence may be relied upon in support of the application.

Ratio Decidendi

The court found that the applicant's statutory demand was defective and that privileged 'without prejudice' correspondence was improperly relied upon. The respondent had paid the major amounts claimed, leaving only a disputed sum, and had tendered payment if proven correct. The indebtedness was bona fide disputed, and the applicant failed to file a replying affidavit. Under these circumstances, the court held that a winding-up order was not appropriate and that each party should bear its own costs. The application was withdrawn by the applicant, and no punitive costs order was granted.

Court Disposition

Application for winding-up withdrawn; each party to pay its own costs.

Orders

  • The winding-up application is withdrawn.
  • Each party is to pay its own costs.