Wilken v Willie N.O (8813/2019) [2019] ZAGPJHC 353 (19 September 2019)

Wilken v Willie N.O (8813/2019) [2019] ZAGPJHC 353 (19 September 2019)

The court found that the respondent, as receiver and liquidator, is subject to fiduciary duties and must account both to the Master of the High Court and to the applicant and Mrs Wilken. The Administration of Estates Act, not the Insolvency Act, governs the assessment of the respondent's fees, as the estates are solvent. The respondent's statement of account must be assessed by the Master according to the prescribed tariff. The respondent failed to properly account for his administration, particularly regarding litigation related to the sale of the property. The applicant is entitled to relief directing the respondent to submit his account for assessment by the Master. The respondent's...

Citation
[2019] ZAGPJHC 353
Parties
Applicant: Wilken Frederick Jacobus; Respondent: Freysen Willie N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 September 2019
Case Number
8813/2019
Procedural Posture
Civil Application / Judgment After Opposed Application and Counterapplication
Outcome
Application granted in part; respondent directed to submit account for assessment by the Master; counterapplication dismissed; costs awarded on attorney and client scale against respondent, not payable from estate funds.
Judges
F Dippenaar
Legal Topics
Fiduciary Duties of Curator, Administration of Estates Act, Taxation of Costs, Removal of Receiver, Attorney and Client Costs
Civil Procedure Family and Children Fiduciary Duties of Curator Administration of Estates Act Taxation of Costs Removal of Receiver Attorney and Client Costs

Case Brief

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Parties

Wilken Frederick Jacobus

Applicant

Freysen Willie N.O.

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application and Counterapplication

Legal Issues

  1. 1 Whether the respondent's fees as receiver and liquidator are subject to taxation by the Master of the High Court.
  2. 2 Whether the respondent's account should be assessed under section 84(1)(b) of the Administration of Estates Act.
  3. 3 Whether the respondent fulfilled his fiduciary duty to account to the applicant and Mrs Wilken.

Ratio Decidendi

The court found that the respondent, as receiver and liquidator, is subject to fiduciary duties and must account both to the Master of the High Court and to the applicant and Mrs Wilken. The Administration of Estates Act, not the Insolvency Act, governs the assessment of the respondent's fees, as the estates are solvent. The respondent's statement of account must be assessed by the Master according to the prescribed tariff. The respondent failed to properly account for his administration, particularly regarding litigation related to the sale of the property. The applicant is entitled to relief directing the respondent to submit his account for assessment by the Master. The respondent's...

Court Disposition

Application granted in part; respondent directed to submit account for assessment by the Master; counterapplication dismissed; costs awarded on attorney and client scale against respondent, not payable from estate funds.

Orders

  • The respondent is directed to submit his statement of account for assessment by the Master of the High Court, Johannesburg in terms of section 84(1)(b) of the Administration of Estates Act 66 of 1965 within 30 days.
  • If the respondent fails to comply, the applicant may supplement his papers and apply for the respondent's removal or other appropriate relief.