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[2019] ZAWCHC 98
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Currin and Another v Van Zyl NO and Another (A62/2019) [2019] ZAWCHC 98 (7 August 2019)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. A62/2019
Before: The Hon. Mr Justice Binns-Ward
The
Hon. Ms Justice Savage
The
Hon. Mr Justice Papier
Date of hearing: 31 July 2019
Judgment:
7 August 2019
In
the matter between:
WESLEY
AVIANT
CURRIN
First
Appellant
RICHARD
PAUL
KRONK
Second
Appellant
and
THOMAS
CHRISTOPHER VAN ZYL
N.O.
First
Respondent
LEBOGANG MICHAEL MOLOTO
N.O.
Second
Respondent
JUDGMENT
BINNS-WARD J (Savage and Papier JJ concurring):
[1]
The appellants have come on appeal to the
full court from the judgment of Vos AJ declaring them personally
liable, jointly
and severally, in terms of s 424(1) of the
Companies Act 61 of 1973, in respect of the indebtedness of Company
Worx Group
(Pty) Ltd (in liquidation), hereinafter in most instances
simply referred to as ‘the company’, to the insolvent
estate
of Shaun Norman Currin.
[1]
The appeal is brought with leave granted by the court of first
instance.
[2]
The proceedings in the court a quo were on
motion. The applicants were the co-liquidators of the company.
However, the
deponent to the principal founding affidavit was the
chief executive officer of ORO Africa (Pty) Ltd (‘ORO’).
It
may readily be deduced from the factual background that I
shall relate presently that the proceedings against the appellants
were
instituted by the liquidators at the instance of ORO. The
critical involvement of the CEO of ORO in the litigation embarked
upon by the liquidators signalled clearly that the object of the
exercise was to facilitate a recovery by the trustees of Shaun
Currin’s estate of funds that might be applied in redemption of
a claim by ORO against the estate. That much was effectively
confirmed in the averment by ORO’s CEO in the founding
affidavit to the application by the liquidators in the court a quo
that ‘[t]
his matter arises out of
a sequestration application in which Shaun Currin was sequestrated by
… “ORO”, …
’.
[3]
The first appellant, who is the brother of
Shaun Currin, had been the sole director of the company at the time
of its liquidation.
The company had been established by Shaun
Currin in 2014, and he was its sole director until June 2015, when he
was replaced in
that capacity by the first appellant. The
timing of the first appellant’s substitution of his brother as
sole director
corresponded closely with the timing of Shaun Currin’s
dismissal from his position at ORO and the institution of the
sequestration
application. The first appellant did not hold any
professional qualifications that were relevant to the services
provided
by the company or its subsidiaries.
[2]
[4]
The second appellant, who is a friend of
both of the Currin brothers, was the general manager of the company
prior to setting up
the same type of business as that of the company
in another entity called Cloud CFO (Pty) Ltd of which he is the sole
director.
He was in the company’s employment from
November 2014 until May 2016. Cloud CFO (Pty) Ltd, which was
incorporated on
9 February 2016, while the second appellant was still
employed by the company, was cited as the fourth respondent in the
court
a quo.
[5]
Shaun Currin had been the chief financial
officer of ORO until June 2015. Currin’s employment by
ORO had ended upon
the discovery that he had embezzled ‘millions
of Rands’ from his employer. ORO thereafter applied for
Currin’s
sequestration. Currin, who all along maintained
that the allegedly embezzled funds had actually been lent to him by
ORO,
opposed that application on the basis that he was not insolvent.
He averred that the existence of his loan account claim against
Company Worx Group (Pty) Ltd resulted in the value of his assets
exceeding that of his liabilities.
[6]
In the sequestration proceedings, ORO
questioned the extent of Currin’s loan account claim. It
was clear, however, that
its calculations had not taken into account
a component amount of R3,5 million that came to light only later
in the exchange
of papers in those proceedings.
[7]
The amount of R3,5 million of Currin’s
reported R4 687 521 loan account claim against the company
represented
the purchase price payable by the company in respect of
the sale to it of Curren’s interest in a dormant entity, Growth
Accountants
CC, and the business of an eponymous ‘sole
proprietorship’ through which Currin, apparently as a side-line
to his employment
with ORO, had conducted an accounting business that
had been established by him as long ago as 2009. The amount was
part
of a R5 million loan facility extended by Currin to the
company in terms of a loan agreement concluded at the same time as
the sale agreement. Shaun Currin executed both of the deeds of
agreement as the representative of both the contracting parties.
The loan would be interest bearing at the prime rate and repayable on
demand after 1 March 2017, or earlier in the company’s
discretion. A significant part of the value given in return for
the R3,5 million purchase consideration was said to
lie in the
company’s acquisition of certain intellectual property
identified only as ‘Mr Currin’s Company Worx
Online
Strategy’, the character of which was not described in the
answering papers in the sequestration application because
of the
advantage its disclosure would allegedly give to competitors of the
company.
[8]
The second appellant, who is an experienced
‘financial professional’ holding a B. Compt degree and a
postgraduate diploma
in applied accounting science, made an
affidavit,
jurat
3 December 2015, in the sequestration proceedings of Shaun
Currin in which he opined, and purported to demonstrate, that
Currin’s loan to the company was recoverable. The
company’s alleged contractual relationship with a business in
the United Kingdom appears to have played a material role in the
second appellant’s calculations in this regard.
[9]
Shaun Currin was provisionally sequestrated
on 15 July 2015. His opposition to the confirmation of the
provisional order
was unsuccessful. The provisional order was
made final on 17 December 2015. The appeal court refused
an application
for leave to appeal against the order on 25 May
2016.
[10]
The company was placed into provisional
liquidation on 28 February 2017 at the instance of the trustees
of Shaun Currin’s
insolvent estate, it being alleged that it
was by that time apparent that it had no assets of any significance
and would be unable
to settle its indebtedness to Currin’s
estate. The company gave notice of its intention to oppose the
application,
but ultimately no opposing papers were delivered.
The provisional winding-up order was made final on 28 April
2017.
It was common ground in the court a quo that upon its
liquidation the company’s only significant liability was its
indebtedness
to Currin’s estate.
[11]
The basis for the application in the court
a quo, in which the second appellant’s father and Cloud CFO
(Pty) Ltd were cited
as the third and fourth respondents,
respectively, was succinctly summarised by the deponent to the
founding affidavit as follows:
The Applicants seek [the relief in terms of s 424]
as the Respondents have all been knowingly party to the carrying on
of the
business of the Company with the intention that the Company’s
creditors be defrauded and for a fraudulent purpose. In
the
case of the [first and second appellants] they have caused the
business of the Company to be carried on recklessly.
Essentially [they] have caused the business and assets of the Company
to be transferred to [Cloud CFO (Pty) Ltd] … with the
intention that claims against the Company be frustrated. In
particular, the Respondents have sought to prevent a loan owing
to
Shaun Norman Currin … from being collected by the trustees of
his estate.
[12]
The judgment of the court a quo vindicated
the allegations summarised in the preceding paragraph and found that
the first and second
appellants, having been complicit or
instrumental in the transfer of the company’s business to Cloud
CFO (Pty) Ltd at no
consideration and with the intention of
frustrating the claims of creditors, and that of Shaun Currin’s
trustees in particular,
were liable to be held personally liable in
terms of s 424(1) of the 1973 Companies Act. Most
materially for present
purposes, paragraph 1 of the court’s
order consequentially provided that –
It is declared in terms of section 424 (1) of the
Companies Act No. 61 of 1973 that [the first and second appellants]
are, jointly
and severally, personally liable for the debt of
R4 687 521,00 which is owed by Company Worx Group Pty Ltd
(in liquidation)
to the insolvent estate of Shaun Norman Currin
(reference C442/2015).
[13]
In the context of the background sketched
in the preceding paragraphs of this judgment, the court a quo had
regard to the following
facts in arriving at its finding that the
declaration sought by the trustees of Currin’s estate was
warranted against the
appellants:
1.
That
the company had moved to larger premises as it had required more
space (an indication that it was trading viably) and that
Cloud CFO
(Pty) Ltd commenced its business operation from the selfsame premises
(in early 2016) while the company was still trading
from there and
had continued in occupation of the premises after the company had
ceased to trade (in about May 2016).
2.
That
Cloud CFO (Pty) Ltd took over the company’s telephone number.
3.
That
Cloud CFO (Pty) Ltd took over virtually all of the company’s
staff, including the first appellant.
4.
That
Cloud CFO (Pty) Ltd conducted precisely the same business as the
company had.
5.
That
the website of Cloud CFO (Pty) Ltd was strikingly similar to that of
the company.
6.
That
the marketing brochure of Company Worx Group (Pty) Ltd was very
similar in appearance to that of the company and replicated
its
wording almost identically.
7.
The
so-called business start-up packages offered by the company and Cloud
CFO (Pty) Ltd were exactly the same and marketed under
the same
names.
(Mention might also have been made of the fact that the first
appellant continued to work at the business address of the company
after it had gone out of business, but did so then ostensibly as an
employee of, or – despite his lack of qualifications
–consultant to, the new company. It might have been noted
too that Shaun Currin was also retained by the new company
on a
monthly stipend.)
[14]
The learned judge at first instance held
that the first appellant had been in breach of his fiduciary duty by
permitting the intellectual
property and goodwill of the company to
be appropriated by the second appellant for Cloud CFO (Pty) Ltd.
He found that the
second appellant had also acted in breach of his
duty of fidelity to the company as his employer by appropriating its
business.
Relying on commentary in Kunst
et
al.
(ed.),
Henochsberg
on the Companies Act 61 of 1973
that
‘…carrying on any business of the company recklessly
means carrying it on by conduct which evinces a lack of
any genuine
concern for its prosperity’,
[3]
Vos AJ concluded that the appellants’ respective conduct
constituted ‘reckless trading’ within the meaning
of
s 424(1).
[15]
In my opinion the pertinent question to
which the conduct identified by the judge gave rise was ‘what
was its object?’.
To characterise the appellants’
behaviour as random, uncoordinated or undirected would be unworldly.
One has heard
before of cases of disloyal employees acting unlawfully
to set themselves up in competition with their employers. Those
cases
inevitably entail the misappropriation by the delinquent
employee of the goodwill of his erstwhile employer and often involve
the
theft of confidential information or intellectual property, and
sometimes even passing off. But how unusual would it not be,
one might ask rhetorically, unless their actions were in concert, for
the delinquent employee also to transfer his erstwhile employer
to
the new business along with all the assets and accoutrements of the
old? And how strange that all of that should happen
without a
murmur of complaint from the holders of the proprietary interest in
the plundered business.
[16]
The compelling effect of the conspectus of
evidence summarised above is that the transfer of the company’s
business to Cloud
CFO (Pty) Ltd was deliberate and purposeful.
In the absence of a convincing explanation to the contrary, the
factual context,
including the timing of the actors’ behaviour
relative to the proceedings for Shaun Currin’s sequestration,
points
ineluctably to the object having been to avoid the burden of
the only thing of significance that was left in the old business –
its liability to Shaun Currin’s trustees – by stripping
the company of its assets and leaving it with its liability.
The conduct was undertaken with the intent to defraud creditors.
No other rationale plausibly suggests itself.
[17]
It is necessarily implicit in the judgment
of the court a quo - in which the passage in
Plascon-Evans
Paints Ltd. v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
at 634-635 was quoted in full, including its
illustration of the exception to the ‘general rule’
therein recorded that
a court would be justified in rejecting merely
on the papers far-fetched or clearly untenable allegations or denials
in the answering
papers when final relief had been sought on motion -
that Vos AJ rejected the claims of the first and second
appellants that
the second appellant had set up the business of
Company Worx Group (Pty) Ltd legitimately in competition with that of
the company
and its subsidiaries, and that the migration of the
latter’s clients to the new business had occurred in the
ordinary course
and that the timing of those events in relation to
that of Shaun Currin’s sequestration was just coincidental.
I do
not think he can be faulted for having done so; cf.
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
,
[2008] 2 All SA 512
(SCA),
2008 (3) SA 371
at paras.
12-13 and
Buffalo Freight Systems (Pty)
Ltd v Crestleigh Trading (Pty) Ltd and Another
[2010] ZASCA 66
,
[2011] 1 All SA 1
(SCA),
2011 (1) SA 8
at para. 19,
approving Eloff AJ’s gloss on the rule in
Plascon-Evans
in
Truth Verification Testing Centre CC
v AE Truth Detection CC and others
1998
(2) SA 689
(W) at 698H–J. Indeed, in argument before us
the appellants’ counsel realistically acknowledged that their
answering
papers were thin and prejudicial to his ability to argue
convincingly on their behalf. In addition, their evidence in
the
insolvency inquiry, which they incorporated by broad-brush
reference in their answering papers in the court a quo, was so
implausible
in relevant respects as to come nowhere near providing a
basis to displace the effect of the evidence described earlier.
[18]
The question then arises whether such
conduct falls to be regarded as part of ‘the carrying on of the
business’ of the
company for the purposes of s 424(1).
I have no doubt that it does. The purpose of the provision is to
discourage the
abuse of corporate personality. It is framed to
achieve that by providing a mechanism by which those responsible for
the
grossly negligent or dishonest use of corporate entities can be
deprived of the benefit of immunity from personal liability that
the
legal fiction of juristic personality ordinarily confers on those who
carry on business through them; cf.
Ebrahim
and Another v Airport Cold Storage (Pty) Ltd
[2008] ZASCA 113
,
2008 (6) SA 585
(SCA),
[2009] 1 All SA 330
at
para. 15.
[4]
It would defeat the object of the provision to interpret it narrowly
in a manner that would equate carrying on a company’s
business
only to active trading conducted through the corporate entity.
[19]
In the context of proceedings in terms of
s 332 of the 1948 English Companies Act, which provided in
relevant part, in subsection
(1) thereof, as follows-
If
in the course of the winding up of a company it appears that any
business of the company has been carried on with intent to defraud
creditors of the company or creditors of any other person or for any
fraudulent purpose, the court, on the application of the official
receiver, or the liquidator or any creditor or contributory of the
company, may, if it think proper so to do, declare that any
persons
who were knowingly parties to the carrying on of the business in
manner aforesaid shall be personally responsible, without
any
limitation of liability, for all or any of the debts or other
liabilities of the company as the court may direct …
Oliver J
(later Lord Oliver of Aylmerton) rejected an argument that the
collection and disposal of a company’s assets
in the context of
closing down its business did not amount to an incidence of the
carrying on of its business; see
Re
Sarflax Ltd.
[1979] 1 All ER 529
(Ch.D) at 534-535. He took the view that
those charged with conducting the affairs of a company were engaged
in carrying
on its business in all their actions until the company
had performed all the obligations that the fact of trading had
imposed on
it. I agree with the opinion expressed, with
reference to
Sarflax
,
in
Henochsberg
op. cit. supra at p. 916 that ‘[b]usiness is carried on,
within the meaning of the section, even if it does not involve
active
trading, e.g. if it merely involves the realisation of assets and
dealing with their proceeds’.
[5]
[20]
Turning now to the grounds of appeal.
Many of them amounted to complaints about the judge’s reasons
rather than attacks
on the correctness of the result of the
proceedings at first instance. It is trite that an appellate
court is concerned only
with the outcome of the case, and not with
the court a quo’s reasons for determining that. I shall
therefore restrict
my discussion only to the issues that the
appellants’ counsel argued at the hearing of the appeal.
[21]
The first ground of appeal was that the
court a quo erred in declaring the appellants to be personally liable
for the debt in the
stated amount of R4 687 521 when such
an order had not been sought in terms of the notice of motion.
The objection
appears to have been raised consequent upon a
misconception by the appellants of the effect of the declaration.
When the
matter was argued before us, however, it eventually became
common ground between the parties’ counsel that the only effect
of the statement of the amount in the court’s order was to peg
the appellants’ maximum liability in respect of the
identified
debt in that amount. (There was no cross-appeal against the
pegging effect of the declaration that was made.)
[22]
The court a quo’s declaratory order
is not a judgment sounding in money that is exigible against the
appellants. The
respondents had not sought such an order.
As is frequently the case in such matters, the respondents sought
only a declaration
that the appellants be personally liable ‘for
all or any debts’ of the company, alternatively ‘for the
debts
of the Company in respect of Shaun Norman Currin’.
It was therefore necessary for the respondents to prove only the
existence of an unpaid debt owed by the company to Currin, not its
quantum. The existence of the debt was not disputed.
It
was only (unconvincingly) suggested that the R3,5 million
purchase price related component of it might be susceptible to
downward adjustment.
[23]
The position in the current case therefore
differs, for example, from that in
PriceWaterhouseCoopers
Inc and Others v National Potato Co-operative Ltd and Another
[2015] ZASCA 2
,
[2015] 2 All SA 403
(SCA), in which the plaintiffs
sued for a declaration that the defendants were liable for certain
identified debts
and
also for judgments sounding in money against them in respect of each
of the debts for which they had been declared liable.
It also
differs in the respect that is material from the matter of
Cheng-Li
Tsung and Another v Industrial Development Corporation of South
Africa Ltd and Another
[2013] ZASCA 26
;
2013 (3) SA 468
(SCA), in which the parties had agreed upon the
amount in which the defendants would be liable to the plaintiffs if
the court were
to make a declaratory order against them in terms of
s 424(1). It also differs from the examples that are
frequently
encountered in which a declaration in terms of s 424
is sought in respect of debts that are already the subject of extant
judgments sounding in money that have been granted against the
company.
[6]
[24]
In the current case, if agreement on
quantum cannot be reached, it will be necessary for the trustees to
obtain a judgment quantifying
the amount in which the appellants are
actually liable to the insolvent estate consequent upon the
declaratory order. This,
notwithstanding that the appellants
have on previous occasions admitted not only the existence, but also
the extent of Shaun Currin’s
loan account.
[25]
The first ground of appeal therefore
effectively fell away.
[26]
The appellants’ counsel also sought
to argue that the company would in any event not have been in a
position to repay the
loan when it fell due. This argument was
predicated on the alleged inability of the company to continue
effectively in business
once it had lost the services of the second
appellant because the first appellant was not qualified to carry on
with the business
on his own. Counsel, with reference to the
remarks made by Davis J in the course of his judgment finally
sequestrating
Shaun Currin, also sought to rely on the inherent
fragility of start-up companies to downplay the effect of the
representations
put forward by the appellants in those proceedings
concerning the ability of the company to repay the debt.
[27]
As the respondents’ counsel pointed
out, it is by no means clear that these arguments were adumbrated in
the grounds of appeal.
They are in any event devoid of merit.
Even if one were to accept their factual predicate, they implied that
a causal link
is required between the reckless trading or fraudulent
conduct of those against whom a declaration in terms of s 424(1)
is
sought and the debts of the company that may be made the subject
of it. It is well established that there is no such
requirement;
see e.g.
Howard v
Herrigel and Another NNO
[1991] ZASCA 7
;
1991 (2) SA
660
(A) at 672. And to the extent that the judgments in
L
& P Plant Hire BK v Bosch
[2001]
ZASCA 147
,
2002 (2) SA 662
(SCA) and
Saincic
v Industro-Clean (Pty) Ltd
[2006] ZASCA 83
,
2009
(1) SA 538
(SCA) might have been construed to have held to the
contrary, the position has since been clarified in
Fourie v
First Rand Bank Ltd
[2012] ZASCA 119
;
2013 (1) SA 204
(SCA);
[2013] 1 All SA 291
at paras. 26-31; see also
Tsung
supra, at paras. 26-28.
[28]
A declaration of personal liability in
terms of s 424(1) is a punitive remedy; see
Philotex
(Pty) Ltd and Others v Snyman and Others; Braitex and Others v Snyman
and Others
[1997] ZASCA 92
;
1998 (2) SA 138
(SCA) at
142H-I. By the example he gave in
Saincic
at para. 29,
[7]
I understand Harms JA to have illustrated that there should
therefore be some relevant connection between the defendant’s
conduct and the inability of a creditor to obtain effective redress
against the company to merit the imposition of the punishment
inherent in the declaration.
[8]
I respectfully share the view expressed by Farlam JA in the principal
judgment in
Saincic
[9]
that the existence of such connection or lack thereof is a matter
that will influence the exercise by the court of its discretion
in
deciding whether or not to make a declaration in terms of s 424.
The evidence did establish the existence of a relevant
connection in the current case. The facts suggest that the very
purpose of the transfer of the business was to avoid the
effect of
Shaun Currin’s trustees pursuing his loan account claim against
the company. Furthermore, having regard to
the fraudulent
character of the appellants’ conduct, there would on any
approach have been no basis for the arguments advanced
in this regard
on the appellants’ behalf to have influenced the court a quo to
exercise its discretion in their favour.
[29]
Lastly, something was sought to be made by
the appellants that the trustees of Shaun Currin’s insolvent
estate had not proven
a claim against the company in liquidation.
There was nothing in the point. The omission by the trustees to
prove their
claim does not detract from the existence of the debt, or
from the liquidators’ standing to seek a declaration in terms
of
s 424(1) in respect of it. The object of obtaining a
declaration is not to create a situation of joint and several
liability
with the company, but to identify a substituted debtor
against which payment of the debt that the company is unable to pay
may
be exacted; cf.
Saincic
supra, at para. 27. There can be little doubt, in the
context of what was said at the outset of this judgment, that
the
declaration will be used by the trustees, at the instance of ORO, to
pursue the claim against the appellants.
[30]
The following order is made:
The appeal is dismissed with costs, including the fees of two
counsel.
A.G. BINNS-WARD
Judge of the High Court
K.M. SAVAGE
Judge of the High Court
T.D. PAPIER
Judge
of the High Court
APPEARANCES
Appellants’ counsel:
L.M. Olivier SC
A. de Wet
Appellants’ attorneys
Broadway & Associates
Kenridge
Respondents’ counsel:
A.R. Sholto-Douglas SC
D. van Reenen
Respondents’ attorneys:
Knowles Husain Lindsay Inc
Cape Town
[1]
The judgment is listed on SAFLII:
Van Zyl NO and Another v Currin and
Others
[2018] ZAWCHC 189
(15 October 2018)
.
[2]
The evidence suggests in many
respects that no clear distinction was maintained between the
company and its subsidiaries.
There were no financial
statements and the second appellant, who testified at the inquiry
into the affairs of the insolvent estate
of Shaun Currin conducted
in terms of the
Insolvency Act 24 of 1936
that he was the general
manager of one of the subsidiary companies, described himself in his
affidavit in opposition to the application
in the court a quo as the
general manager of
Company
Worx Group (Pty) Ltd. The report submitted by the second
appellant in Shaun Currin’s sequestration application
indicated that Company Worx Group (Pty) Ltd was a trading company
that would be able to repay the loan to Currin. It was
also
the purchaser of Currin’s accounting business as a going
concern (see paragraph 7, below).
[3]
In support of which the commentators
cite the following authority:
Anderson
v Dickson NO (Intermenua (Pty) Ltd intervening)
1985 (1) SA 93
(N) at 110; and cf
L&P Plant Hire
BK v Bosch
2002
(2) SA 662
(SCA) at 677;
Ebrahim
v Airport Cold Storage (Pty) Ltd
[2008] ZASCA 113
;
2008 (6) SA 585
(SCA) at 18; and further
Ex
parte Lebowa Development Corporation Ltd
1989 (3) SA 71
(T) at 111;
Heneways
Freight Services (Pty) Ltd v Grogor
2007 (2) SA 561
(SCA) and
Ozinsky
NO v Lloyd
1992
(3) SA 396
(C) at 413–414.
[4]
In
Ebrahim
the court was
engaged with s 64 of the Close Corporations Act, which, as
Cameron JA noted (at para.13), ‘is for
all intents and
purposes identical to s 424 of the Companies Act 61 of 1973’.
[5]
The judgment in
Sarflax
was endorsed by the Court of Appeal in
ESS
Production Ltd (In Administration) v Sully
[2005] EWCA Civ 554
(11 May 2005) (concerning proceedings under
s 217 of the 1986
Insolvency Act exacting
personal liability by
a director for a company’s debts).
[6]
The matter of
Breytenbach
and Another v Evans
[2018] ZAGPPHC 336 (4 May 2018) cited in argument by the
respondents’ counsel affords such an example.
[7]
‘
Take the example of company A
that incurs a liability towards creditor B for debt C while the
business of A was conducted in a
fraudulent manner. The fraud did
not affect the solvency of the company and debt C was paid.
Thereafter A incurs debt D at a
time when the business was properly
conducted. Due to other circumstances A cannot pay this amount to B.
There can be little
doubt that B would not be entitled to rely on
section 424(1)
in these circumstances.’ (
Per
Harms JA.)
[8]
In an
obiter
dictum
in
Tsung
supra, at para. 27, Lewis JA expressed the view that
Harms JA intended to indicate that a relevant connection
in
timing
was required between the impugned conduct and the company’s
inability to pay. I would, with respect, be hesitant
to
formulate the character of what might provide a relevant connection
so restrictively.
[9]
In para. 20.