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[2014] ZAGPPHC 55
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Fedbond Nominees (Pty) Ltd v Wagner N.O and Others (47962/2012) [2014] ZAGPPHC 55 (4 February 2014)
IN THE NORTH
GAUTENG HIGH COURT OF PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NUMBER: 47962/2012
DATE:
4/2/2014
In the matter
between:
FEDBOND NOMINEES
(PTY) LTD.....................................Applicant
And
ELSIE WAGNER
N.O.................................................First Respondent
ANTON VICTOR
HAMMAN N.O.......................Second Respondent
THE MASTER OF THE
HIGH COURT...................Third Respondent
JUDGMENT
DE KLERK AJ
[1] This is an
application for:
a) Reviewing and
setting aside the confirmation by the Master of the First and Final
Liquidation and Distribution account of Global
Tourism and Sports
Development (Pty) Limited (in liquidation).
b) Granting the
Applicant the right to reopen the said account.
c) Directing the
First and Second Respondents to pay the costs of the proceedings de
bonis propriis.
[2] The First and
Second Respondents raised a point in limine to wit the Applicants
failure to comply with the provisions of
Section 7
of the
Promotion
of Administrative Justice Act 3 of 2000
.
[3] In the
Applicant’s replying affidavit it was submitted that it would
be in the interest of Justice that the delay in launching
the
application be condoned. Same was however not persisted with and it
was subsequently argued on behalf of the Applicant that
the
confirmation of the account by the Master does not fall within the
ambit of the Act and that the time limit prescribed by
Section 7
therefore does not apply.
[4]
Section 7
of the
Act is in my view applicable.
[5] The Applicant in
my view did not comply with
section 7
of the Act.
[6] Consequently
prayer 1 for the reviewing and setting aside of the confirmation by
the Master of the First and Final Liquidation
and Distribution
account is dismissed.
Reopening - Legal
Principles:
[7]
Sections 112
and
151
of the
Insolvency Act 24 of 1936
, contemplate the reopening of a
confirmed account.
[8] In order to
succeed in an application for reopening it is necessary for the
Applicant to establish the existence of one of the
grounds upon which
restitutio in integrum would be granted, such as fraud or justus
error.
[9] Even though the
court may find that good grounds exist for reopening the account, the
Applicant must further establish prima
facie that the account is
incorrect and would have to be amended.
The Applicant’s
contentions:
[10] The Applicant
with regard to restitutioin integrum relies on justus error and
contended that his ignorance in omitting to inspect
the account while
lying open for inspection was not caused by his negligence but was
justifiable in that he had not received notice
to that effect.
[11] With regard to
the second hurdle to wit, that the Applicant should satisfy the Court
that some good purpose would be served
in reopening the account the
Applicant submitted that it was agreed between the Applicant and the
First and Second Respondents
to abandon the immovable property owned
by Global Tourism and Sports Development (Pty) limited (in
liquidation) in favour of the
Applicant and to pay the First and
Second Respondents an agreed fee in the amount of R50 000.00.
The Respondents’
contentions:
[12] The
Respondents’ contentions first of all with regard to restitutio
in integrum were that proper notice had been given
and that the
account had been laid open for inspection in accordance with
provisions of the Companies Act.
[13] The First and
Second Respondents further disputed the alleged fee agreement.
[14] The common
cause facts are:
1. The account was
confirmed by the Master.
2. The Applicant is
the only creditor in the insolvent estate.
3. Included in the
account is provision for “likwidateursvergoeding” in the
amount of R350 000.
4. The First and
Second Respondents sent a notice dated 27 November 2009 by registered
mail addressed to all known creditors advising
them that the account
would lay open for inspection during the period 11 December 2009 to
25 December 2009.
5. The notice was
returned as unclaimed to the Respondents.
[15] Application of
the law to the facts:
1. In my view it is
clear on the papers that the Applicant did not receive notice and
that the Applicant was not negligent with
regard to the inspection of
the liquidation and distribution account and failure to object
thereto.
2. In my view the
Applicant’s failure to object has been induced by justus error.
3. With regard to
the second hurdle referred to herein before the dispute concerns the
remuneration claimed by the First and Second
Respondents for their
fees as reflected in the Liquidation and Distribution account.
4. The memorandum of
agreement entered into between the First and Second Respondents and
the Applicant (attached to the Applicants
founding affidavit) in
terms whereof the immovable property was abandoned in favour of the
Applicant is not in dispute.
5. The notice of
abandonment (attached to the Applicant’s founding affidavit)
which contains the alleged fee agreement is
however in dispute. The
First and Second Respondents have stated that Mr Swanepoel, who
entered into the agreement with the Applicant,
did not have the
necessary authority to act on their behalf.
6. It is however
common cause that Mr Swanepoel was also at the time a Director of
Tutor Trust.
7. As stated
hereinbefore the dispute between the parties concerns the
remuneration claimed by the First and Second Respondents
for their
fees.
8. Section 63 (
׀
)
of the
Insolvency Act 24 of 1936
entitles a trustee to a reasonable
remuneration for his services “to be taxed by the Master
according to tariff B in the
second schedule to the Act provided that
the Master may, for good cause, reduce or increase his remuneration
or may disallow his
remuneration either wholly or in part on account
of any failure of or delay in the discharged of his duties or on
account of any
improper performance of his duties”.
9. The Master was
unaware of all the facts and allegations central to the dispute
between the parties when the account was confirmed
by him.
10. In my view, the
Applicant has made out a prima facie case that some good purpose will
be served in reopening the account.
In the premises, the
court orders that:
1. The Applicant is
given the right to reopen the First and Final Liquidation and
Distribution account of Global Tourism and Sports
Development
Proprietary Limited in liquidation;
2. No order as to
costs.
Signed at on this
day of 2014.
Judge De Klerk AJ
The Honourable
Judge of the High Court of Pretoria