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[2016] ZAGPPHC 522
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Sectional Poles (Pty) Ltd v D and Electrical Projects CC (68223/15) [2016] ZAGPPHC 522 (24 June 2016)
REPUBLIC
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 68223/15
24/6/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
SECTIONAL
POLES (PTY)
LTD PLAINTIFF
And
D
AND ELECTRIACAL PROJECTS
CC DEFENDANT
JUDGMENT
NAUDE
AJ
[1]
The applicants requested that a cost order be
made in the liquidation application where the final order had already
been granted.
An order was granted on the 26th January 2016
confirming the provisional liquidation and finally winding up the
close corporation.
[2]
When the Taxing Master was approached to set down
the matter for taxation, it was conveyed that no costs would be taxed
in the absence
of a court order awarding costs to the applicant or an
agreement between the parties allowing such costs.
[3]
The applicants requested that the final
liquidation order be amplified to include a costs order.
[4]
The Registrar has not had the opportunity of
dealing with what was presented to me. Even in the event that what
was presented was
incorrect I was still requested that the position
be clarified in a judgment. I give the following reasons for not
amplifying the
liquidation order.
[5]
A cost order need not specifically be made as the
costs of sequestration and/ or liquidation proceedings follow as a
matter of law
(ex lege).
[6]
A trustee or liquidator must from the first
available funds of the estate, reimburse the sequestrating creditor
his taxed bill of
costs in sequestrating the debtor's estate.
(Section 14
(2) of the
Insolvency
Act 24 of 1936
)
No
claim needs to be proven for these costs, as they are part of the
costs of sequestration or liquidation.
[7]
The
Insolvency Act applies
mutatis
mutandis
to the winding-up of a company or
close corporation with regards to the costs of liquidation.
[8]
The costs described in
Section 97(2)
(c) of the
Insolvency Act, include
the taxed costs of the application.
[9]
It was stated in the matter of
Brooks
v Taxing
Master
1960
(3)
SA 225
(N) at 227
A that:-
"I point out that
no particular order
as
to
costs
was
asked
for in
the
order
prayed, nor was any mention made of
costs
either
in the rule
nisi or in the subsequent winding-up order. No
question, therefore, of the proper interpretation of any order of
Court
arises.
What
seems
to me to
arise
is
a
question
of the proper interpretation of the relevant legislation, for it
seems
to
me
clear that the applicant's right to
costs
stems
from such legislation and not from the
terms of any order of
Court."
[10]
The provisions of the Practice Directive in this
Division (Annexure "A"- appendix 1) 'Standard Order for
final Liquidation',
also does not require an order for costs. The
proposed order simply reads:
"The above
mentioned respondent is hereby placed under final winding up."
[11]
The right to costs stems from legislation and the
inclusion thereof is not required in a court order. The Taxing Master
therefore
should not refuse to tax a bill of costs in sequestration
and/or liquidation proceedings if the Court did not specifically make
an order for costs.
[12]
The applicants also requested that the costs that
were reserved regarding a postponement in the unopposed court on the
26th October
2015 be granted. No facts were put before me to enable
me to determine, whether these costs should be awarded to the
applicant.
The order reserving the costs stands.
[13]
The only order that I make is:
12.1. The cost of this
application·including the costs pertaining to the 20th and
22nd of June 2016 and the Heads of argument
are to be cost in the
liquidation and may be taxed as part of the costs of the application
for the liquidation.
__________________________
NAUDE
AJ
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Applicants
:
Advocate Pl Oosthuizen
Instructed
by
:
Date
of Hearing
: 22 June
2016
Date
of Judgment
: 24 June
2016