About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 85
|
|
Barbaglia N.O and Others v Noble Land (Pty) Ltd and Others (A5041/2020) [2021] ZAGPJHC 85 (24 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appeal Case No.
A5041/2020
A quo case No:
2018/27249
1. Reportable:
No
2. Of interest to
other judges: No
3.
Revised: Yes
In
the matter between:
BARBAGLIA
N.O., MICHAEL
First appellant
ANDERSEN
N.O., CHARL
Second appellant
(The first and second
applicants are cited in their respective representative capacities as
the Trustees for the time being of The
Lion Trust)
BARBAGLIA,
MICHAEL
Third appellant
and
NOBLE
LAND (PTY) LTD
First
respondent
BARBAGLIA,
GREGORY MASSIMO
Second Respondent
BARBAGLIA
N.O., GREGORY MASSIMO
Third Respondent
PEDRIGAL
N.O., CARLOS
Fourth Respondent
MIZZA
N.O., DOMINICO
Fifth Respondent
(In
their capacities as trustees of for the time being of The Omegna
Trust)
BARBAGLIA,
SILVANA
Sixth Respondent
(Intervening
Party)
Appeal
against refusal of winding-up of a company on just and equitable
grounds. Appeal upheld.
JUDGMENT
DE
VILLIERS, AJ:
Introduction
[1]
The facts of this commercial matter are
unique, and set out a family tragedy. The two main personalities
involved are two brothers
who are at war with each other. Their
dispute in the matter on appeal before us, is about a property-owning
company, the first
respondent: Noble Land (Pty) Ltd (“
Noble
Land
”). Their real dispute is
about the division of a family’s business(es). The court
a
quo
referred to the situation as a
family feud.
The
material context
[2]
The two brothers, Michael Barbaglia
(“
Michael
”)
and Gregory Barbaglia (“
Gregory
”)
are the two directors of Noble Land. They each have an interest in a
family trust: Michael has an interest in The Lion
Trust (it is
described in the founding papers as “his” family trust)
and Gregory has an interest in the Omegna Trust
(it is described in
the founding papers as “his” family trust). The Lion
Trust holds half of the issued shares in Noble
Land and the Omegna
Trust holds the other half. Thus, on the one side of the dispute one
has Michael and The Lion Trust, and on
the other, Gregory and The
Omegna Trust.
[3]
Michael and The Lion Trust unsuccessfully
sought the winding-up of Noble Land in the court
a
quo
. Michael is the third appellant (in
his capacity as a director of Noble Land) and also the first
appellant in his capacity as a
trustee of The Lion Trust.
[4]
The mother of the two brothers, Silvana
Barbaglia (“
Mrs Barbaglia
”),
joined the proceedings as the sixth respondent. She did not
participate in the appeal. The appellants and respondents
other than
Michael, Gregory and Mrs Barbaglia, are trustees of the two
shareholders (the Lion Trust and the Omegna Trust). When
I refer to
“
respondents
”
in the rest of this judgment, I refer to the respondents before this
court, namely the second to fifth respondents.
[5]
The remaining family member, but not a
party to the proceedings before us, was the husband of Mrs Barbaglia
and the father of Michael
and Gregory.
I
refer herein to him as “
Mr
Barbaglia
”. Mr and Mrs Barbaglia
have sought to extract themselves from the family business(es). This
led to the family feud between
the two brothers. Mr Barbaglia, who
was elderly, recently passed away. Mr Barbaglia formed Pabar (Pty)
Ltd (“
Pabar
”)
in 1965. It has been and still is reported to be a successful
business and it has funded many ventures that the Barbaglia
family
has embarked upon. The legal basis for this arrangement is in issue.
[6]
The above summary is not a finding that all
the parties are properly before the court, as the validity of the
appointment of the
second appellant, Charl Andersen NO, as a trustee
of The Lion Trust, is in issue. The contention is that Mr Barbaglia
did not have
the capacity to resign as a trustee of The Lion Trust
thereby paving the way for the appointment of Mr Andersen as trustee
on 8
April 2019. We need not resolve this dispute in this matter, as
it has no bearing on the outcome of this appeal.
[7]
Noble Land owns substantial immovable
assets, but does not create sufficient income to cover its monthly
running expenses. Its running
expenses are met and have been met by
Pabar.
[8]
An imprecise reference to family
business(es) is required, as the respondents’ version is that
the relationship is a single
one of a universal partnership (i.e.,
one family business), with one third of the shares owned by each of
Michael, Gregory and
their parents (jointly). This is in dispute.
This judgment (and the judgment in the court
a
quo
) approached the matter on the basis
that the parties involved on the papers before this court
intended Noble Land and Pabar to have separate
corporate personalities
and clearly
entered into an arrangement as to their
shareholdings. As already referred to, the Lion Trust and the Omegna
Trust each holds 50%
of the shares in Noble Land. Pabar’s
shareholding is in dispute, but it is also not held in three,
one-third allocations
either. On the respondents’ version, it
is owned 100% by Mr and Mrs Barbaglia. Michael avers that he holds
15%, and his parents
the remaining 85%.
[9]
The court
a
quo
dismissed the application for the
winding up of Noble Land on 2 July 2020. The appeal is before this
court with leave of the court
a quo
.
Legal
grounds for the relief sought
[10]
The appellants sought a final winding-up
order in their founding papers in terms of:
[10.1]
Section
344(f),
[1]
read with section 345,
[2]
of the
Companies
Act
61 of 1973 (being on the basis that Noble Land is unable to pay its
debts);
[10.2]
Section
344(h)
[3]
of the 1973 Companies Act (being on the basis that it appears that it
is just and equitable that the company should be wound-up).
[11]
Alternatively
to a winding-up under the 1973 Companies Act, the appellants seek the
appointment of a liquidator on the basis that
“
the
company appears to be insolvent
”
under section 163(2)(b), as read with section 163(1)
[4]
of the 2008 Companies Act (relief applicable in the case of
oppressive or prejudicial conduct).
[12]
In a winding-up of a company, the usual
first question is if the 1973 Companies Act still applies. The 2008
Companies Act repealed
the 1973 Companies Act in section 224, but
retained certain sections as an interim
arrangement in cases of insolvent companies. Accordingly, which Act
applies, is a question
determined with reference to solvency. The
interim retention of parts of the 1973 Companies Act is set out in
Schedule 5 to the
2008 Companies Act. It retains Chapter 14 of the
1973 Companies Act under which the sections mentioned above, fall.
The schedule
then expressly states that “
sections
343, 344, 346, and 348 to 353 do not apply to the winding-up of a
solvent company, except to the extent necessary to give
full effect
to the provisions of Part G of Chapter 2
”
of the 2008 Companies Act.
[13]
However, if only winding-up for just and
equitable reasons are in issue, the solvency issue becomes of lesser
importance. The reasons
are that both Acts contain such a section,
and as will appear below, the impact of a decision by the Supreme
Court of Appeal,
Thunder Cats
Investments 92 (Pty) Ltd and Another v Nkonjane Economic Prospecting
and Investment (Pty) Ltd and Others
2014 (5) SA 1
(SCA).
[14]
The two just and equitable sections are
section 344(h) of the 1973 Companies Act and section 81(1)(d)(iii) of
the 2008 Companies
Act. Section 344(h) has been quoted above in
footnote 3. Section 81(1)(d) of the 2008 Companies Act reads:
“
(1)
A court may order a solvent company to be wound up if-
(a)
…
(d)
the company, one or more directors or one or more shareholders have
applied to the
court for an order to wind up the company on the
grounds that-
(i)
the directors are deadlocked in the management of the company, and
the shareholders
are unable to break the deadlock, and-
(aa)
irreparable injury to the company is resulting, or may result, from
the deadlock; or
(bb)
the company's business cannot be conducted to the advantage of
shareholders generally, as a result
of the deadlock;
(ii)
the shareholders are deadlocked in voting power, and have failed for
a period that includes
at least two consecutive annual general
meeting dates, to elect successors to directors whose terms have
expired; or
(iii)
it is otherwise just and equitable for the company to be wound up
”
.
[15]
There is a great deal of overlap between
the two just and equitable sections. Section 81(1)(d) and the effect
of the
Thunder Cats
judgment
are addressed later herein.
Material
facts
[16]
In short, Noble Land’s relevant
history and financial position are as follows:
[16.1]
Noble Land was formed in 1998 and since
inception, Prabar funded its operations on some basis;
[16.2]
Over time, so funded by Prabar and some
mortgage finance, Noble Land acquired three properties, a property
situated in Sandhurst,
a property situated in Morningside, and a
property situated in Umhlanga;
[16.3]
The first two properties are investment
properties and the third property is a holiday apartment. They are of
considerable value;
[16.4]
A mortgage bond is registered against the
Sandhurst property in favour of a bank in the amount of about R3.9
million. The monthly
instalments are about R64 000.00. The value of
the property, according to the appellants, is about R50 million. The
value is in
dispute, but not that it is considerable. It is
convenient to make two points now: (a) If the secured creditor, the
mortgagee is
not paid, it will foreclose on the property, and (b)
there is significant equity in the property to prevent a sale in
execution
by selling the property to a willing buyer. An upmarket
dwelling has been erected on this property;
[16.5]
No mortgage bond is registered against the
Morningside property. The value of the property, according to the
appellants, is at least
about R55 million. The value is in dispute,
but not that it is considerable;
[16.6]
A mortgage bond is registered against the
Umhlanga property in favour of a bank in the amount of about R1.5
million. The monthly
instalments are about R50 000.00. The value of
the property, according to the appellants, is about R12 million. The
value is in
dispute, but not that it is considerable. The same points
made with regard to the Sandhurst property about the consequences of
non-payment of the mortgage loan and the equity in the property,
apply to the Umhlanga property;
[16.7]
Noble Land
’
s
monthly expenses in mortgage repayments, rates and taxes, and
maintenance amount to about R170 000.00. It earns a rental income
of
about R22 000.00 per month from one of the properties. The shortfall
is paid by Prabar and has always been paid by Prabar;
[16.8]
Prabar also paid for the acquisition (and
development) of the three properties in as far as this has not been
financed by the two
mortgage loans; and
[16.9]
No formal loan agreement has been concluded
between Prabar and Noble Land. The appellants aver that in 2013 Noble
Land was indebted
to Prabar in the sum of R8 Million (which amount
has increased) and to another related company it is indebted in the
sum of about
R2.1 Million. These amounts are disputed, but it is not
in dispute that the assets of Noble Land exceed its liabilities.
Is
Noble Land factually or commercially insolvent?
[17]
Noble Land is solvent. It is factually
solvent as its assets exceed its liabilities by a large amount. It is
commercially solvent
on the unique facts of this case as its monthly
expenses of about R170 000.00 are paid in full through rental income
and payments
by Prabar. No current debt of Noble Land remains unpaid.
There is no proof that Prabar will stop making payment (and put Noble
Land at risk), and if it does, the sale of one immovable property
will restore commercial solvency at least for a long time and/or
there is large equity in the immovable properties against which money
could be borrowed. I pause to add that the payment of expenses
by a
third party does not in itself justify the winding-up of a company.
See
Orestisolve (Pty) Ltd T/A Essa
Investments v NDFT Investment Holdings (Pty) Ltd and Another
2015 (4) SA 449
(WC) para 81-82.
[18]
As such, in considering the winding-up of
Noble Land, the matter has to be approached in terms of the 2008
Companies Act. See
Boschpoort
Ondernemings (Pty) Ltd v Absa Bank Limited
2014 (2) SA 518
SCA para 17-24.
Just
and equitable ground for winding-up
[19]
The respondents argued
that a finding that the 2008 Companies Act applies,
would end the matter, as no winding-up was sought under the 2008
Companies Act in the papers and in the heads of argument.
[20]
It is correct that no winding-up was so
sought under the 2008 Companies Act. The appellant did not plead
compliance with sections
81(1)(d)(i) or 81(1)(d)(ii) of the 2008
Companies Act.
[21]
I respectfully disagree that the failure by
the appellants to plead compliance with section 81 of the 2008
Companies Act is fatal
to the relief sought. It is unnecessary to
determine each of the requirements set out in sections 81(1)(d)(i)
and 81(1)(d)(ii),
as this court has an overall discretion to wind-up
Noble Land in terms of section 81(1)(d)(iii). This appears from
Thunder Cats
.
[22]
Thunder Cats
dealt
with the just and equitable winding-up under the 2008 Companies Act
and approved of a winding-up order under section 81(1)(d)(iii)
in a
case where there was a general breakdown of the relationship between
the shareholders and, the company was of the kind envisaged
in
Re
Yenidje Tobacco Co Ltd
[1916] 2 Ch 426
(CA), being one that is in substance a partnership in the guise of a
company. The SCA in paragraph 14 held that section 81(1)(d)(iii)
extends the cases for a just and equitable winding-up and indeed
could overlap with a deadlock described in sections 81(1)(d)(i)
and
81(1)(d)(ii). This would mean that it could be just and equitable to
wind up a company even where there has say been non-compliance
with
section 81(1)(d)(ii), the two consecutive annual general meeting
stipulation. Hence the SCA held in paragraph 14 that section
81(1)(d)(iii) has an extended meaning:
“…
This case
is also concerned with the ‘deadlock principle’ or,
preferably, the failure of the relationship between the
parties. The
examples of ‘deadlock’ given in s 81(1)(d) (i) and (ii),
that is, where either the board or the shareholders
are deadlocked
are examples only, and, it seems to me, are not exhaustive and do not
limit s 81(1)(d)(iii). The use of the word
‘otherwise’ in
the subsection does not limit what is meant by ‘just and
equitable’. On the contrary, it
extends the grounds of
winding-up to include other cases of deadlock. It is conceivable that
it may be just and equitable to liquidate
even if the shareholders
have been unable to elect successors to directors for less than the
stipulated period that includes two
consecutive annual general
meeting dates, as s 81(1)(d)(ii) requires
.”
[23]
This would mean that this court, as had
been the case in
Thunder Cats
,
could draw upon (and expand on) the well-established body of law with
regard to the just and equitable winding-up ground that
existed under
the 1973 Companies Act, and which that judgment fully discussed in
paragraphs 15-17.
[24]
In essence this court has a wide discretion
in the exercise of which a broad conclusion of law, justice and
equity must be applied
to the facts.
[25]
The respondents argued (I quote from the
heads of argument):
“
Vincenzo,
[5]
Michael and Gregory agreed as long ago as 1990 that the businesses
operated by them would be conducted for the benefit of all three
of
them in equal shares. Gregory identifies this agreement as a
“universal partnership”. Silvana
[6]
refers to this agreement as the “Barbaglia Estate
”
…
.”
[26]
It seems to me that it would be an
untenable argument to deny that the relationship between the two
registered shareholders is that
which exists in a so-called a
domestic company, founded on the analogy of partnership. It is
further untenable to argue that the
relationship between Michael and
Gregory is irretrievably broken down and
deadlocked. The objective facts led the court
a
quo
to find that “
it
is common cause that the relationship between the brothers is toxic
and dysfunctional, both on a professional and a personal
level
”.
[27]
Due to the impact of
Thunder
Cats
, there is a great deal of overlap
between the two Companies Acts on a just and equitable winding-up.
With respect, it matters not
that the wrong legislation was relied
upon, provided that the basic contentions were made (the case was
pleaded for a winding-up
on a just and equitable basis), and the
facts have been established. It woud be placing form over substance
to hold otherwise.
Factual disputes and dirty hands
[28]
The respondents correctly argued that there
are unresolved factual disputes in the matter. In my view they could
remain unresolved,
save for any that would stand in the way of the
relief I intend to recommend. The principal argument is that the
application is
an abuse, that the respondents are not to blame for
the current situation, but that the appellants are. This is a factual
dispute
that could not be resolved finally on the papers. I disagree
that it stands in the way of a winding-up order.
[29]
Thunder Cats
in
paragraph 17 referred to the principles set out in
Apco
Africa (Pty) Ltd and Another
v
Apco
Worldwide Inc
[2008] ZASCA 64
;
2008 (5) SA 615
(SCA)
para 19 which states (underlining added):
“…
The second,
usually called the deadlock principle, is derived from the Yenidje
Tobacco Company case. It is founded on the analogy
of partnership and
is strictly confined to those small domestic companies in which,
because of some arrangement, express, tacit
or implied, there exists
between the members in regard to the company's affairs a particular
personal relationship of confidence
and trust similar to that
existing between partners in regard to the partnership business. If
by conduct which is either wrongful
or not as contemplated by the
arrangement,
one or more of the
members destroys that relationship, the other member or members are
entitled to claim that it is just and equitable
that the company
should be wound up
. (See also
Moosa NO v Mavjee Bhawan (Pty) Ltd and Another
1967 (3) SA 131
(T) at
137; Emphy and Another v Pacer Properties (Pty) Ltd
1979 (3) SA 363
(D) at 366H - 367B.)
”
[30]
The SCA in
Apco
considered if the party seeking the winding-up, caused the paralysis,
and stated in paragraph 21 the test to be (underlining added):
“
Actual
deadlock is not an essential to the dissolution of a
partnership. All that is necessary is to satisfy a court
that it is impossible for the partners to place that confidence in
each other which each has a right to expect and that such
impossibility
has not been caused
by the person seeking to take advantage of it
.
…”
[31]
The
SCA in
Apco
thereafter
considered the evidence and found that it was not established that
the applicant for the winding-up approached the court
with so-called
dirty hands; having sabotaged the company and causing the paralysis.
The SCA determined the factual disputes in
this regard on the record
and found that the evidence does not support such a contention.
[32]
These
extracts would seem to support the respondents’ contentions.
However it is not the end of the matter. Put differently,
does
Apco
mean that a court must make a finding in every case that the person
seeking the winding-up of a company on just and equitable grounds
has
so-called clean hands? The answer is “no”.
[33]
If
one has regard to the remainder of
Apco
,
the SCA in paragraph 29 and especially paragraph 30 in effect put the
dirty hands argument subordinate to the real issue of justice
and
equity (underlining added):
“
[30]
But it is perhaps not necessary to go that far.
It
suffices, on the analogy of partnership law, to state that the
company is now in a state which could not have been contemplated
by
the parties when it was formed and that it ought to be terminated as
soon as possible
. It is, after
all,
contrary to the good faith
and essence of the agreement between the parties that the state of
things encountered here should be
allowed to continue
.
As it was put in In re Yenidje Tobacco Co Ltd (at 430):
In those circumstances,
supposing it had been a private partnership, an ordinary partnership
between two people having equal shares,
and there being no other
provision to terminate it, what would have been the position? I think
that it is quite clear under the
law of partnership, as has been
asserted in this court for many years and is now laid down by the
Partnership Act, that that state
of things might be a ground for
dissolution of the partnership and for the reasons which are stated
by Lord Lindley in his book
on Partnership . . . and which, I think,
is quite justified by the authorities to which he refers:
'Refusal to meet on matters of
business, continued quarrelling, and such a state of animosity as
precludes all reasonable hope of
reconciliation and friendly
co-operation have been held sufficient to justify a dissolution.
It
is not necessary, in order to induce the court to interfere, to show
personal rudeness on the part of one partner or the other,
or even
any gross misconduct as a partner. All that is necessary is to
satisfy the court that it is impossible for the partners
to place
that confidence in each other which each has a right to expect, and
that such impossibility has not been caused by the
person seeking to
take advantage of it
.'
In
my opinion the proved facts bring the present case well within this
passage.
…”
[34]
In
Thunder
Cats
the SCA also made it clear in
paragraph 27-29 that even if it were to be found that the party
seeking the winding-up was at fault,
it was not an absolute bar to
success, but only an important factor. I accordingly respectfully
decline to follow
Emphy and Another v
Pacer Properties (Pty) Ltd
1979 (3) SA
363
(D) at 368H where it was held that an applicant who relies upon
the just and equitable provision, must not have been wrongfully
responsible for the situation which has arisen. It is but a factor.
[35]
It seems to me that the approach of the SCA
is pragmatic and one of common sense. Often when there has been a
breakdown in a relationship,
one would find with difficulty a party
who is solely responsible. Often both parties would be at fault to
some degree, even if
most of the fault could be apportioned to one
party. In this regard I agree with the assessment of the court
a
quo
that both brothers have to some
extent contributed to the current state of affairs.
[36]
Ultimately in this matter, this court
cannot resolve all the factual disputes about which camp is the more
obstructionist. It seems
to me that the conclusion in
Apco
paragraph 28-30 applies here too. It is
common cause that here is a complete breakdown in the relationship
which makes Noble Land
unable to function. No one would describe
their relationship as one of friendly co-operation in running the
affairs of Noble Land.
There is no reasonable hope of tiding over the
period of conflict and of Noble Land emerging as a functioning
company. The parties
are hopelessly at loggerheads. Both settlement
talks and mediation failed. Noble Land is now in a state which could
not have been
contemplated by the parties when it was formed, and the
way forward appears to be more and more litigation with no end in
sight.
These material facts can be determined on the papers, despite
the numerous factual disputes, including about the conduct of the
appellants.
[37]
On the facts of this matter, those disputes
have reached a level where it would be just and equitable to wind
Noble Land up.
Conclusion
[38]
The form of the order and costs remain in
issue.
[39]
I agree with the respondents that on the
facts of the matter, a provisional order would not be appropriate. I
agree that (and I
borrow from the heads of argument) that the usual
reasons motivating a provisional order are not present. There are no
unpaid creditors
or interested third parties to be afforded an
opportunity to oppose the relief. There are really no third parties
outside the family
who are affected, as the mortgage creditors are
secured creditors. There is no cogent reason to appoint a liquidator
to manage
Noble Land’s affairs in the interim pending any
further hearing.
[40]
It was never in contention that the costs
of two counsel should be awarded. It seems to me to be fair and just
to order that the
costs be paid from the insolvent estate. Ultimately
the appellants succeed on a basis not expressly pleaded, and not
dealt with
in the court
a quo
on the basis that it was not relied upon. The current situation seems
at least in part to have been caused by Michael, and the
only way to
determine the degrees of blame would have been a long oral hearing.
The matter is in essence a dispute within a family.
Under these
circumstances the usual rule that the appellants should be awarded
the costs of the appeal, in my view, should not
be followed.
[41]
Accordingly, I propose that the following
order be made:
1.
The appeal is upheld;
2.
Paragraph 1 of the order of the court
a
quo
dated 2 July 2020 is set aside and
replaced with the following order-
“
1.1
The first respondent is placed under final
winding-up;
1.2
The costs of the application are to be costs in the winding-up,
inclusive of the costs of two counsel where
so employed
;”
3.
The costs of the appeal are to be costs in
the winding-up, inclusive of the costs of two counsel where so
employed.
DP de Villiers
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION OF
THE HIGH COURT, JOHANNESBURG
I
agree
MP Tsoka
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION OF
THE HIGH COURT, JOHANNESBURG
I
agree
PA Meyer
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION OF
THE HIGH COURT, JOHANNESBURG
Heard
on:
21 April 2021
Delivered
on:
24 June 2021 by uploading on CaseLines
On
behalf of the Appellants:
Adv A Subel SC
Adv GW Amm
Instructed
by:
Werksmans Attorneys
On
behalf of the Second to Fifth Respondents:
Adv S Symon SC
Adv
P Cirone
Instructed
by:
Bowman Gilfillan
[1]
“
A
company may be wound up by the Court if … the company is
unable to pay its debts as described in section 345
”;
[2]
In
this case, section 345(1)(c) and 345(2):
“
(1)
A company or body corporate shall be deemed to be unable to pay its
debts if-
(a)
…
(c)
it is proved to the satisfaction of the Court that the company is
unable to pay its debts.
(2)
In determining for the purpose of subsection (1) whether a company
is unable to pay its debts, the Court shall also take into
account
the contingent and prospective liabilities of the company
”
;
[3]
“
A
company may be wound up by the Court if … it appears to the
Court that it is just and equitable that the company should
be wound
up
”;
[4]
“
(1)
A shareholder or a director of a company may apply to a court for
relief if-
(a)
any act or omission of the company, or a related person, has had a
result that is oppressive or unfairly prejudicial to, or
that
unfairly disregards the interests of, the applicant;
(b)
the business of the company, or a related person, is being or has
been carried on or conducted in a manner that is oppressive
or
unfairly prejudicial to, or that unfairly disregards the interests
of, the applicant; or
(c)
the powers of a director or prescribed officer of the company, or a
person related to the company, are being or have been
exercised in a
manner that is oppressive or unfairly prejudicial to, or that
unfairly disregards the interests of, the applicant.
(2)
Upon considering an application in terms of subsection (1), the
court may make any interim or final order it considers fit,
including-
(a)
…
(b)
an order appointing a liquidator, if the company appears to be
insolvent”;
[5]
Mr
Barbaglia
[6]
Mrs
Barbaglia