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[2015] ZAGPPHC 376
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Xanadu Properties 234 (Pty) Ltd v Absa Bank Limited (12069/2012) [2015] ZAGPPHC 376 (20 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 12069/2012
DATE:
20 MAY 2015
In
the matter between:
XANADU
PROPERTIES 234 (PTY)
LTD
..............................................................................
Applicant
And
ABSA
BANK
LIMITED
.......................................................................................................
Respondent
JUDGMENT
MATO
JANE, J
Introduction
[1]The
applicant seek an order in terms whereof the default judgment granted
by this court on 30 July 2012 be rescinded and set
aside.
Background
[2]
The Registrar of Companies deregistered applicant as a result of poor
administration on 14 July 2010.
[3]
On or about 23 July 2011 Pecanwood Estate Homeowners Association
launched an application for the winding-up of the applicant.
The
winding-up application was served on the applicant on 16 August 2011.
[4]
The applicant was re-registered on 5 October 2011.
[5]
On 28 February 2012 the respondent issued simple summons for payment
of the arrear premiums on a mortgage bond in the sum of
R776 542.09.
A provisional winding-up order was subsequently granted on the 27
July 2012 after Pecanwood Homeowners Association
had failed to give
notice of the date of hearing to the applicant.
[6]
On 30 July 2012 default judgment was granted against the applicant
for the payment of R776 542.09. The court order
declared
Portion 116 (a portion of Portion 115) of the farm Hartebeesthoek
303, Registration Division JR, Gauteng specially executable.
[7]
The respondent arranged for the sale in execution of the property and
on 12 June 2014 the court set aside the sale in execution.
[8]
The applicant contends that the respondent was precluded by Section
359(1) of the Companies Act, 1973 from proceeding with an
application
for default judgment against the applicant who was already under
winding-up.
[9]
The respondent for its part, submits that when the application for
the liquidation of the applicant was launched on the 23 July
2011 and
when the liquidation application was served on the 16 August 2011,
the applicant was deregistered with the result that
such proceedings
and the provisional order that was granted are a nullity and section
359(1) of the Companies Act could not have
been a bar to the
respondent applying for a default judgment.
[10]
In
Newlands Surgical Clinic v Peninsula Eye Clinic
[I]
the
Supreme
Court of Appeal brought certainty in the proper construction of
Section 82
and
83
of the
Companies Act, 71 of 2008
in respect of
restoration of registration of a company removed from the register by
the Company and Intellectual Property Commission
in terms of
Section
82(3).
The court held that reinstatement of deregistered company by
virtue of
s 82(4)
has complete retrospective effect - including
validation of corporate activities during period of deregistration.
[11]
It follows that the default judgment was
granted at the time when applicant was already under winding up
contrary to the provisions
of section 359(1) of the Act which
provides that when a court has made an order for a winding up of a
company all legal proceedings
by or against the company are suspended
until the appointment of a liquidator.
[12]
In the result the default judgment was
not valid and stands to be rescinded.
Order:
1.
The default judgment granted on 30 July
2012 in favour of the respondent is rescinded and set aside.
2.
The respondent is ordered to pay the
costs
K.E
MATOJANE
JUDGE
OF THE HIGH COURT
[I]
(086/2014)[2015] ZASCA 25 (20 March 2015).