Parity Insurance Co Ltd (In Liquidation) v Hill and Another

• Jurisdiction: South Africa
• Judge: Munnik J and Eksteen J
• Judgment Date: 30 September 1966
• Citation: 1966 (4) SA 486 (E)
• Hearing Date: 01 August 1966
• Court: Eastern Cape Division

C Munnik, J.:

In this matter the present applicant until its liquidation carried on business as an insurer in terms of the motor vehicle insurance Act, 29 of 1942, and the first respondent instituted an action for compensation against it in terms of that Act.

D Whilst the action was pending, the applicant was liquidated by order of the Witwatersrand Local Division. The action proceeded against applicant in liquidation and the first respondent succeeded in her action and was awarded a certain amount of compensation and costs. On appeal to the Appellate Division the quantum of the compensation was reduced by that Court and the applicant was granted the costs of the appeal.

E First respondent taxed a bill for her costs of trial from the time of the applicant's liquidation to the conclusion of the trial and, after deducting by way of set off the costs of appeal taxed by the applicant, sought payment forthwith of the balance and, payment not being forthcoming, thereafter issued a writ for such costs.

F Applicant has applied to have the writ set aside, the basis of its application being that the costs in question rank as a concurrent claim as costs of administration but are not payable until the final liquidation account has been drawn and lain for inspection for the requisite period and been confirmed.

G First respondent, on the other hand, contends that, having regard to the powers conferred upon the liquidators in terms of the liquidation order, as amended, these costs are costs incurred by the applicant in running the business of the company and as such are payable forthwith and, payment having been refused, are properly the subject matter of a warrant of execution.

H According to the papers before me it is clear that a considerable time may elapse before applicant is in a position to present its final accounts for inspection and confirmation. First respondent's desire to have her costs at least paid at this juncture is therefore understandable.

It is necessary to set out those powers conferred upon the liquidator which to my mind are relevant to the decision of the point in issue. (I quote them as amended):

'It is ordered that an order be and is hereby granted:

Munnik J

1. (a)

Placing the whole of the business of the respondent company in liquidation in terms of sec. 30 (3) (d) of Act 27 of 1943;

(c)

Appointing Norman Gilliam Levey, Norman Ross Lake, and Ernst Repsold Enslin, as joint liquidators of the respondent company;

(f)

A Vesting in the liquidators all the powers allowed to a liquidator in terms of the Insurance Act, 27 of 1943, and the Companies Act, 46 of 1926, as amended, including the powers set forth in sec. 130, read with sec. 142 of the Companies Act, 46 of 1926, but without the necessity of obtaining directions or resolutions of creditors provided for in sec. 130 (2), read with sec. 142 (4) of the Companies Act, provided that the liquidators shall at all times be subject to the control of the Master and of this Honourable Court and may at any time apply for directions in B terms of sec. 324 of Act 27 of 1943; and provided further that any person aggrieved by any act or decision of the liquidators may apply to Court, after notice of motion, to the liquidators in terms of sec. 142 (5) of the Companies Act and the Court may make such order as it thinks fit; and provided specifically that the liquidators shall have power, without the necessity of obtaining directions or resolutions, to defend and/or settle all insurance claims against the company, to employ attorney and counsel for that purpose, the costs thereof to be costs in the liquidation;

(i)

C Authorising the liquidators, with the approval of the Master, to employ attorneys and/or counsel for the recovery of debts due to the respondent company for any necessary investigations which might be authorised by the Master, or the Registrar of Insurance and for the defence of actions other than insurance claims instituted against the company or for any other purposes necessary in the...