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[2014] ZAWCHC 191
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Molyneux and Another v Patel and Others (14618/2014) [2014] ZAWCHC 191 (27 November 2014)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: 14618/2014
DATE
:
27 NOVEMBER 2014
In the matter between:
RHETT
JUSTIN CHRISTOPHER MOLYNEUX
....................................
1
st
Applicant
ZEREBA
HOMES (PTY)
LIMITED
......................................................
2
nd
Applicant
And
MOHAMED ISMAIL
PATEL
...........................................................
1
st
Respondent
DUDLEY BERNARD
DAVIDS
........................................................
2
nd
Respondent
MASTER OF THE HIGH COURT
(CAPE
.......................................
3
rd
Respondent
TOWN)
ISMAIL KASKAR
N.O
...................................................................
4
th
Respondent
RAEEZ KASKAR
N.O
....................................................................
5
th
Respondent
REGISTRAR OF DEEDS (CAPE
TOWN)
.......................................
6
th
Respondent
EX
TEMPORE JUDGMENT
ROGERS
J
:
Introduction
[1]
This is an application for an order declaring that a transfer
effected in the Deeds Office on 2 October 2014 was not lawful.
I
shall refer to the first applicant as Mr Molyneux and the second
applicant as Zereba. The first two respondents are the liquidators
of
a company called Be-Vest 0043 (Pty) Limited. The third respondent is
the Master of the High Court in Cape Town. The fourth and
fifth
respondents are the trustees of a trust called the Ismail and Raees
Kaskar Trust, to which I shall refer as the Kaskar Trust.
The sixth
respondent is the Registrar of Deeds.
[2] Mr
Molyneux appeared this morning in person for the two applicants. Ms
Wharton appears for the liquidators. The other respondents
have not
participated in the proceedings. (All references in this judgement to
‘the respondents’ are to the first and
second
respondents.)
[3] I
do not propose to set out at very great length the background and
circumstances of the case. I shall just mention the following.
The
company in liquidation, which I shall refer to as BV, for some years
owned a property in 65 Bowwood Road, Claremont, being
Erf 56195. It
appears that it was also the personal residence of Mr Molyneux.
[4]
During October 2000 Absa lent money to BV on the security of the
property. Default judgment was subsequently taken when BV fell
into
default. During July 2012 BV, or more accurately Mr Molyneux, caused
resolutions to be passed which purported to place BV
in business
rescue. Absa brought an application under case 17677/12 to set aside
the business rescue resolutions and to have BV
placed in liquidation.
[5] On
22 November 2012 Baartman J granted an order by agreement in terms
whereof the business rescue resolutions were set aside
and BV was
placed in provisional liquidation with a return day of 24 January
2013. The liquidation was made final without opposition
on 24 January
2013 and since that time BV has been in final liquidation. The first
and second respondents were appointed as final
liquidators during
April 2013.
[6] On
13 May 2013 and in the days immediately preceding that date the
liquidators and the Kaskar Trust signed an agreement of sale
in terms
whereof the liquidators sold the property to the Kaskar Trust for a
price of R2,7 million.
[7] It
appears that round about 22 May 2013, or perhaps a day or two later,
Absa formally lodged its claim for proof in the liquidation
of BV.
That was in advance of the second meeting of creditors to be held on
28 May 2013. According to the minutes of the latter
meeting, Absa was
the only creditor present by proxy. Certain resolutions were passed
to which I shall revert presently. Absa’s
claim was admitted to
proof at that meeting.
[8] On
4 September 2013 the liquidators’ conveyancer caused the
documentation for the transfer of the property to the Kaskar
Trust to
be lodged at the Deeds Office. According to the tracing report from
the Deeds Office which Mr Molyneux annexed to his
founding papers,
the Deeds Office rejected the papers on 12 September 2013. They were
re-lodged the next day, presumably after
the correction of whatever
formal defects existed. The transfer was registered on 2 October
2013.
[9] In
between the re-lodging of the deeds on 13 September 2013 and the
registration of transfer on 2 October 2013, the applicants
in the
present case issued and delivered to the liquidators an application
in terms of
s 131
of the
Companies Act 71 of 2008
to place BV in
business rescue. It is common cause that the application was
delivered personally by Mr Molyneux to the liquidators
on 23
September 2013. (To foreshadow one of Mr Molyneux’s main points
in the present case, he says that the delivery of the
business rescue
application suspended the liquidation with immediate effect pursuant
to
s 131(6)
of the Act, in consequence of which the transfer
registered on 2 October 2013 should be declared invalid.) In the
event the business
rescue application was dismissed by an order of
the Judge President on 17 March 2014.
[10]
During March 2014 Mr Molyneux brought the first of two applications
for declaratory relief, the second being the one that is
before me
today. The earlier application for declaratory relief also sought an
order declaring that the transfer of 2 October 2014
was invalid by
virtue of the sale not having been authorised in accordance with the
Alienation of Land Act 68 of 1981. (It is also
to the
Alienation of
Land Act that
Mr Molyneux referred in the notice of motion in the
present application for a declaratory order.)
[11]
The liquidators opposed the earlier application for a declaratory
order, just as they had opposed the business rescue application.
In
the first declaratory application Mr Molyneux failed, as he had done
in the business rescue application, to file replying papers.
He
withdrew that application on 8 August 2014, tendering the
liquidator’s costs.
[12] In
the meanwhile, during April 2014, the Kaskar Trust commenced eviction
proceedings in the Wynberg Magistrate’s Court
to evict Mr
Molyneux from the property.
[13] On
15 August 2014 Mr Molyneux filed his papers in the present
application, seeking relief which appears to be identical to
that
claimed in the earlier declaratory application which he withdrew. As
I have said, the liquidators opposed the declaratory
application and
have filed answering papers. On 5 November 2014 the Judge-President
by agreement postponed the matter to today
with a time-table for
replying papers and heads of argument. Although Mr Molyneux was late
with his replying affidavit and only
filed heads of argument this
morning at the hearing, Ms Wharton for the liquidators does not ask
that the application be dismissed
on that ground.
[14]
Although the notice of motion refers to an invalidity of the transfer
supposedly arising by virtue of the provisions of the
Alienation of
Land Act, I
will take into account that Mr Molyneux is a lay person
(though he does appear to have considerable familiarity with legal
process).
He really raised three separate grounds for attacking the
validity of the transfer. The first was the suspending effect of
s131(6)
of the new
Companies Act. The
second was an alleged absence
of authority by the liquidators to sell the property, having regard
to the provisions of
s 386
of the old Companies Act 61 of 1973. The
third is alleged non-compliance with the
Alienation of Land Act.
[15
]
Since the applicant seeks final relief, the
Plascon-Evans
rule applies to the resolution of any genuine disputes of fact.
Furthermore, since the relief sought is declaratory in nature,
the
court has the usual discretion which it has in such matters.
Discretion and delay
[16] I
must say that, even without going into the merits of each ground of
invalidity advanced by the applicants, I would be inclined
to
exercise my discretion against granting the declaratory order by
virtue of the following circumstances. The transfer which is
now
sought to be attacked was registered on 2 October 2013. Mr Molyneux
and Zereba brought an application to declare that transfer
invalid in
March 2014. If one assumes that Mr Molyneux only learnt of the sale
and transfer shortly before he brought the first
application, the
first application could not be criticised for having been delayed.
However, that application was not properly
prosecuted and eventually
it was abandoned by Mr Molyneux together with a tender for costs.
[17]We
then have a virtually identical application, at least insofar as the
relief is concerned, launched on 15 August 2014, around
ten months
after the impeached transfer. The facts on which the new application
is based would have been facts known to Mr Molyneux
when he brought
the first application. In particular he obviously was aware of the
delivery of his business rescue application
in September 2013. He was
aware of the provisions of the
Alienation of Land Act. And
I have no
reason to doubt that he was able to formulate and advance any case he
might have wished to pursue based on
s 386
of the old Companies
Act.
[18]
However and assuming I were wrong on this simple basis to dismiss the
application, I proceed to consider the main points which
arise under
each of the grounds of attack.
Locus standi
[19]
There is a preliminary question as to the
locus
standi
of each of the applicants. Mr
Molyneux alleged in very bald terms in the founding affidavit that he
was a creditor of BV; and that
Zereba was BV’s sole shareholder
and also a creditor by virtue of a building and improvement lien. All
the facts surrounding
locus standi
are in dispute. Mr Molyneux did not make allegations in the founding
papers to substantiate that he was a creditor. In his replying
affidavit he contented himself with an allegation that he was at all
material times the director of BV and therefore entitled to
directors’ fees. The question whether he has since 2009 been a
director of BV is itself a disputed fact but, assuming that
he were,
there is no rule of law which decrees without more that a director is
entitled to any particular fees. That is a matter
for agreement
between the company and the director. No information is set out, even
in the replying papers, regarding any directors’
fees which may
have been agreed. I therefore do not think that Mr Molyneux in his
personal capacity has
locus standi
to attack the transactions concluded by BV’s liquidators.
[20] In
regard to Zereba, there is a dispute as to whether it is the sole
shareholder of BV. The respondents’ version, based
on
information supplied by the attorneys who have possession of BV’s
share register, is that since December 2008 the sole
shareholder of
BV has been a company called Eurocape. I am not sure that the dispute
of fact can be said not to be a real or genuine
one.
[21] In
regard to the improvement lien and the underlying claim which Zereba
allegedly has against BV, the claim was dealt with
at some length in
a letter written by the liquidators to the Master on 21 October 2014
and attached to the answering papers. Mr
Molyneux is clearly unhappy
about the inattention which Zereba’s improvement lien and claim
have received from the liquidators
but the fact of the matter is that
in the proceedings before me the claim is disputed and it has not
been admitted as yet to proof.
Be that as it may, I shall
assume that, by virtue of the alleged claim, Zereba has a sufficient
interest to seek the relief which
it does.
Section
131(6) of the new Companies Act
[22]
Turning then to the question of the business rescue application and
its effect on the liquidation of the company, Ms Wharton
raised as a
first argument that a business rescue application could not be
regarded as having been properly made and as thus triggering
s 131(6)
unless it has been served in accordance with s 131(2).
[1]
The latter provision requires an applicant for business rescue to
serve a copy of the application on the company and on the Companies
and Intellectual Property Commission (‘CIPC’) and to
notify each affected person of the application in the prescribed
manner. The affected persons for present purposes can be taken to be
the creditors and members of BV since I accept that BV did
not have
any employees.
[23] We
know that at least Absa was a creditor. As regards who the member
was, there is a dispute of fact as to whether it was Zereba
or
Eurocape. The founding papers in the present matter did not
provide any evidence of service or notification beyond an
allegation
that the application was handed to the liquidators on 23 September
2013. As it happens the liquidators of a company
are not defined as
being included within the phrase ‘affected person’ in
s 128 nor are they people on whom s 131(2)
requires the
application to be served, at least not expressly.
[24] In
the answering affidavit the absence of evidence of proper service of
the application on the CIPC and notification to affected
parties was
pointed out. No proof of such service/notification was provided in
the replying papers. Given the potentially disruptive
effects which
s 131(6) could have, if it has the meaning for which Mr Molyneux
argues, I consider Ms Wharton’s point
to be well made that the
application cannot be regarded as having been properly brought unless
it has been served and notified
in the required manner.
[25]
Assuming this conclusion to be incorrect, one has to consider what
was, legally, the effect of the delivery of the application. Now
I would have thought, particular if s 131(6) has the effect for
which Mr Molyneux contends, that one should confine its operation
to
a business rescue application which has been brought in good faith
and for a proper purpose, namely for the rescue of the company
and
not for an ulterior purpose such as to disrupt the liquidation or for
some personal benefit. In the answering papers there
is an attack on
Mr Molyneux’s
bona fides
,
the liquidators alleging that he delivered the business rescue
application in order to disrupt the liquidation and with a view
to
staving off eviction proceedings.
[26]
There is evidence which lends credence to that view. One knows that
Mr Molyneux previously caused BV to adopt resolutions placing
itself
in business rescue but, when Absa intervened to have those
resolutions set aside and to liquidate the company, he and Zereba
were party to an agreement in terms whereof the business rescue
resolutions were abandoned and the company was placed in provisional
liquidation. That occurred, I emphasise, with the applicants’
agreement. They did not appear to oppose the final liquidation.
[27] I
am thus not satisfied that the business rescue application, relating
to a company apparently without employees and whose
sole asset is an
immovable property, can be regarded as having been brought by these
particulars applicants in good faith rather
than for an ulterior
purpose. It appears to me to have been an abuse of the court’s
process.
[28] If
I am wrong in expressing that view, I must consider the proper
meaning of s 131(6). A first question which arises on
the
interpretation of that section is whether what is suspended is a
pending but un-adjudicated application for liquidation, or
the
subsequent administration of the liquidation once the company has
been placed in liquidation, or both. I am aware of two judgments
in
Gauteng which held that s 131(6) does not apply to
un-adjudicated pending liquidation proceedings but only to the actual
administration of the winding-up itself. Those cases are
Absa
Bank v Sumner Lodge (Pty) Limited
2014
(3) SA 90
(NGP) and
Absa Bank v Makuna
Farm
2014 (3) SA 86
(SGP).
[29] I
have read those cases carefully. I must say that I entertain
considerable doubt as to whether they are correct. What s 131(6)
says is suspended is liquidation proceedings which have been
commenced ‘by or against the company’. Once the winding
up order has been granted, the administration of the liquidation
cannot be properly regarded as something by or against the company.
The phrase ‘by or against the company’ indicates to my
mind that the proceedings contemplated in s131(6) are legal
proceedings by a company, or by a shareholder or creditor against the
company, for a liquidation order.
[30]
There are practical considerations in favour of that view. If
s 131(6) were to have the effect indicated by the Gauteng
cases
and for which Mr Molyneux argues, it would mean that a company would
effectively be left rudderless from the moment the business
rescue
application is served until it has been determined.
Ex
hypothesi
, there would not, pending the
determination of the business rescue application, be a business
rescue practitioner to guide the
affairs of the company. On the other
hand the liquidator, so it is contended, would not be able to do
anything because the liquidation
would have been completely suspended
by s 131(6).
[31]
What if the company in liquidation has a business? Can nobody pay its
rent? Can nobody pay its employees? Can perishable stock
not be
sold? These anomalies and very considerable inconveniences do
not arise if one limits s 131(6) to a suspension
of pending
liquidation proceedings prior to the grant of a final order of
liquidation. Prior to the grant of a liquidation order
the company
will be in the hands of its directors. What is then suspended is the
adjudication of the liquidation application. This
seems to me to give
effect to the policy objective of the lawmaker which is to give
business rescue the best chance of succeeding.
For that reason the
business rescue application must be determined prior to a pending
liquidation application, though often they
may end up being
adjudicated together.
[32] It
may be argued, against this point of view, that if a business rescue
application did not suspend the actual administration
of the
winding-up after the granting of a final order of liquidation, the
business rescue application might be rendered nugatory.
This
overlooks that in terms of s 354 of the old Companies Act, which
still applies to companies which are being liquidated
because of an
inability to pay their debts, the court may at any time, on the
application of the liquidator, creditor or member,
stay or set aside
the proceedings or the continuance of the winding-up on such terms
and conditions as the court may deem fit.
If the person applying for
business rescue considers that the continued administration of the
liquidation will prejudice the prospects
of successful business
rescue, he could, together with his business rescue application,
apply to the court to stay the administration
of the winding-up,
either in whole or in part. The court could grant an order tailored
to the particular circumstances of the case,
allowing certain
transactions to proceed but holding others in abeyance.
[33]
Severe dislocation and disruption, and I would think prejudice to all
affected persons, would be caused if s 131(6) had
the effect for
which Mr Molyneux contends and which admittedly finds support in the
two Gauteng cases I have mentioned. In the
present case, for example,
there would have been a hiatus from September 2013 (when Mr Molyneux
delivered his business rescue application)
to March 2014 (when it was
dismissed). For those six months, so it is suggested, nothing
could be done in relation to the
affairs of this company. The company
was forced, I suppose, to breach its sale contract with the Kaskar
Trust. It could not pay
rates or do anything else that was required.
That sounds to me to be a most unpalatable view to take of
s 131(6).
[2]
[34]
For these reasons I do not consider that the mere delivery of the
business rescue application suspended the powers of the liquidators
pursuant to the final order of liquidation.
[35]
Even if I am wrong and s 131(6) does apply to the administration
of the liquidation after a final winding-up order has
been granted,
the question arises precisely what it is that is suspended. In the
present case we know that prior to the delivery
of the business
rescue application the liquidators and the Kaskar Trust had already
concluded the deed of sale. The contract for
the disposal of the
property occurred a number of months before the bringing of the
business rescue application. By the time the
business rescue
application was brought, the deeds had been lodged and were simply
awaiting final execution at the Deeds Office.
[36] If
the liquidators in this case did anything after the delivery of the
business rescue application, it was to allow their agent,
the
conveyancer, to attend at the Deeds Office on 2 October 2014 for
purposes of actually having the concluded transaction registered.
I
cannot believe that s 131(6) was intended to suspend an act of
that kind, in other words to have required the liquidators
to
instruct their conveyancer not to take the final step of that which
was already almost completed. The section might, if I am
wrong on the
earlier point, prevent liquidators from concluding contracts for the
disposal of property but I cannot see that it
prevents them from
allowing effect to be given to contracts which they have already
concluded.
[37]
The final point which would arise on s 131(6) is whether,
assuming all the conclusions thus far are incorrect, the section
necessarily has the effect of nullifying a transfer even though one
knows, after the event, that the business rescue application
was
dismissed. The section does not say precisely what the effect is of
the performing of acts by the liquidators during a period
that the
liquidation proceedings are suspended. The section does not say that
anything done during the period of suspension is
a nullity.
[38]
Where declaratory relief is sought, which is in the discretion of the
court, and it is known by the time the court is asked
to grant the
declaratory order that the business rescue application which
suspended the liquidators’ powers was dismissed,
the court
should not in my view accede to the undoing of acts which may
technically have been impermissible by virtue of the suspension.
The
suspension exists to aid the likelihood of a successful business
rescue. Once the business rescue application has been dismissed,
that
objective is absent.
[39] In
the present case, for example, if Mr Molyneux’s contentions
were correct, the liquidators could immediately after
the dismissal
of the business rescue application on 17 March 2014 have caused the
deeds to be re-lodged at the Deeds Office whereupon
the transaction
could have been registered within a few days. I cannot think of
anything more futile, in these circumstances, than
exercising a
discretionary power to declare an earlier transfer invalid.
[40]
For all of those reasons I would reject the ground of attack based on
s 131(6) of the Companies Act.
Section 386 of the old Companies Act
[41]
Turning to s 386 of the old Companies Act, Mr Molyneux makes the
point that the deed of sale was concluded prior to the
second meeting
of creditors. The sale of the property thus required the approval of
the Master in terms of ss 386(2A) and
(2B) of the old Companies
Act. Although Mr Patel, one of the liquidators, made a statement in
earlier proceedings that such consent
had been obtained, it is clear
on the papers before me that this statement was incorrect. It may
therefore be said that at the
time of the sale on 13 May 2013 the
liquidators did not have the authority they required to conclude it.
[41]
But on 28 May 2014 the second meeting of creditors took place.
Section 386(3) says that the liquidator of a company has the
powers
set out in s 386(4) with the authority granted by meetings of
creditors and members or contributories. Among those
powers are the
power to sell immovable property by public auction, public tender or
private contract and to give delivery. At the
time the second meeting
of creditors took place on 28 May 2013 the only proved creditor was
Absa. It was represented at the meeting
according to the minutes
thereof. Those minutes also reflect that resolutions which have been
annexed to the answering papers were
adopted.
[42]
The resolutions included, as item 2, the following: ‘That all
actions of the … liquidators to date be and are
hereby
approved and ratified’. It was decided in
Thorne
v The Master
1964 (3) SA 38
(N) at
44-45 and also at 51h-52a that the authority which creditors may
confer on the liquidator at a second meeting of creditors
includes
the ratification of things previously done without authority. On the
face of it, therefore (and as in the
Thorne
case), item 2 of the resolutions ratified the liquidators’
conduct in concluding the sale.
[43] Mr
Molyneux argues against this that there are documents lodged by Absa
as part of its proof of claim dated 22 May 2013 which
suggest that as
at that date Absa was not yet aware of the sale which had been
concluded about a week earlier. It is clear from
Absa’s
documents dated 22 May 2013 that it wanted the property to be sold.
The question is whether I can be satisfied that
Absa did not, by the
time of the meeting of 28 May 2013, have knowledge of the sale and
intend to ratify it. Since Absa was keen
for a sale to be concluded,
it strikes me as most unlikely that, by the time of the meeting at
which a report of the liquidators
was adopted, Absa did not know of
the sale.
[44] I
can also draw inferences from certain facts. Firstly, it seems most
implausible, where there is only a single proved creditor,
who
happens to be the holder of a mortgage bond over the property, that
the liquidators would not have discussed the sale with
Absa.
Secondly, as a fact the transfer went ahead. One knows that transfer
of property which is subject to a mortgage bond cannot
be effected
without the cancellation of the mortgage bond. Absa must therefore
have acquiesced in the transfer of the property.
I also do not have
anything in the present proceedings to suggest that Absa regards the
transaction as having not been approved
or ratified.
[45] In
these circumstances the ground of attack based on s 386 of the
Companies Act must fail.
The
Alienation of Land Act
[46
]
The third and last ground I need consider is the ground of attack
based on the
Alienation of Land Act. This
attack in my view is
misconceived. That Act sets out formalities which must be complied
with in relation to a deed of sale, failing
which (unless the sale
has been fully performed and transfer of the property has been
affected) any of the parties to the sale
may take the point that it
is not enforceable. The parties to the sale in the present case were
the liquidators on the one side
and the Kaskar Trust on the other.
None of them appears before me today to say that they have any
objection to the sale. In fact
we know that transfer has already been
effected. It may be that
s 28(2)
of the
Alienation of Land Act
does
not strictly apply here because occupation has not yet been
given and the sale may therefore not yet have been fully performed.
I
do not need finally to decide that point.
[3]
What I am satisfied of, however, is that the only persons who can
take the point that formalities have not been complied with are
the
parties to the contract.
[47] I
think, in any event, that the suggestion that the formalities were
not complied with is misconceived. Mr Molyneux’s
argument on
this aspect was closely tied up to what he said regarding
s 386
of the old Companies Act, namely that at the time the sale was
concluded the liquidators did not yet have the authority either
of
the Master or of the creditors at a second meeting of creditors to
sign the deed of sale. That however seems to me to misapprehend
the
question of authority as contemplated in the
Alienation of Land
Act. In
regard to the
Alienation of Land Act, the
question is
whether a person who signs a deed of sale as an agent has the written
authority of his principal to conclude it. In
signing the sale
agreement, the liquidators were not acting as the agents of the
Master nor of the creditors or of the shareholder.
They directly
represented the company in the same way the directors would. They
thus did not need written authority from anyone
at that stage in
order to comply with the formalities in the
Alienation of Land Act.
[48
] I
accept that there is nevertheless a question as to whether the
liquidators had the power to do what they did, having regard
to
company law and the powers which liquidators may exercise at any
given point in the liquidation process. That however is something
I
have addressed on the second ground of attack which Mr Molyneux has
advanced and I have concluded that, although the liquidators
did not
have the power on 13 May 2013 to sign a deed of sale, their conduct
in so doing was ratified.
[49] In
regard to the
Alienation of Land Act there
was also a question raised
in passing about whether the Kaskar Trust had properly signed the
document but I think that complaint
is unsubstantiated. On the face
of it there is a resolution authorising the person who signed it to
do so. I can also take judicial
notice of the fact that a conveyancer
will not permit a transfer to be effected, and the Registrar of Deeds
will not permit one
to be registered, unless there is proper proof of
authority from the transferor and the transferee.
[50] I
think that I have now dealt with all the grounds that need to be
covered and for those reasons
THE
APPLICATION IS DISMISSED WITH COSTS, INCLUDING THOSE RESERVED BY THE
ORDER OF 5 NOVEMBER 2014.
ROGERS,
J
[1]
I did not quote the terms of the section in my
ex
tempore
judgment.
Section
131(6) reads: ‘If liquidation proceedings have already been
commenced by or against the company at the time an application
is
made in terms of subsection (1), the application will suspend those
liquidation proceedings until – (a) the court
has
adjudicated upon the application; or (b) the business rescue
proceedings end, if the Court makes the order applied for.'
[2]
A
point present to my
mind when I gave my
ex tempore
judgement but which I omitted to mention is the following. It seems,
with respect, to be a singularly pointless exercise to place
a
company in provisional or final liquidation (on the basis that the
pending business rescue application does not suspend the
legal
proceedings for the obtaining of a liquidation order) while holding
that as soon the liquidation order is granted its effect
will be
suspended (so that the liquidators will not be able to do anything),
yet this appears to be precisely what
Sumner
Lodge
and
Makuna
Farm
entail. Presumably it would not
even be possible to appoint liquidators since that is also part of
the winding-up process.
[3]
When editing this
ex
tempore
judgement, I noticed that
s 28(2) applies provided the
alienee
(here the Kaskar Trust) has performed in full and transfer has been
given. Since the obligation to give vacant possession rested
on the
liquidators as alienators, not as alienees, my reservations about
the applicability of s 28(2) were probably misplaced.