Bloom's Woollens (Pty) Ltd v Taylor

• Jurisdiction: South Africa
• Judge: Hoexter JA, Beyers JA, Ogilvie Thompson JA, Botha JA and Van Winsen JA
• Judgment Date: 16 March 1962
• Citation: 1962 (2) SA 532 (A)
• Hearing Date: 06 March 1962
• Court: Appellate Division

A Hoexter, J.A.:

On the 12th March, 1959, the respondent, who is a secretary of companies practising at Durban, received a letter from the Durban attorneys of the appellant which reads as follows:

'We act for Blooms Woollens (Pty.) Ltd., and Kirsch Stein & Co. Both companies have claims against New India Tailors, who, we understand, was sequestrated on the 6th instant. The claim of Blooms Woollens (Pty.) Ltd. is very substantial and in the circumstances we shall be pleased if B you will keep us advised of all developments.'

On the 17th March the respondent replies as follows:

'I am in receipt of your letter of the 12th inst. and confirm that the writer has been appointed provisional trustee in the above matter.

I am unable to advise you of the financial position, at this stage, but shall communicate with you in due course.'

C On the 17th March the appellant, a company carrying on business at Johannesburg, wrote to the respondent as follows:

'We have been advised by our solicitors - Messrs. Lubbers, Spitz, Block & Carel, that you are the trustee in the above estate.

We would appreciate if you will advise us per return whether we should prove our claim and what the position is at the present moment.'

On the 19th March the respondent replied to the appellant as follows:

D 'I am in receipt of your letter of the 17th inst. and confirm that the writer has been appointed trustee in the above estate.

The insolvents have not filed their 'statement of affairs' with the Master of the Supreme Court, but as soon as the financial position of the estate has been ascertained, a circular will be forwarded to all creditors in this regard.'

On the 3rd April the Johannesburg attorneys of the appellant wrote to the respondent as follows:

E 'Our clients, Bloom's Woollens (Pty.), Ltd., have a claim for £585 15s. 7d. and costs against the above insolvent estate. You have already advised our clients not to prove a claim at this stage, but the Deputy Sheriff's charges of £23 15s. 9d. together with a further sum of £5 in respect of execution costs are preferent in terms of the Insolvency Act, and we assume that clients can safely claim this amount. Would you please let us have your advices, as also the necessary forms in proof of claim.'

F The reply of the respondent, dated 16th April, reads as follows:

'I am in receipt of your letter of the 3rd inst., contents of which are noted.

As there now appears to be no danger of a contribution, your clients are requested to lodge a claim against the state, the documents for which are enclosed herewith . . .'

On the 29th April the Durban attorneys of the appellant wrote to the respondent as follows:

G 'We send you herewith our client's proof of claim herein.

Please prove client's claim provided there is no danger of a contribution . . .'

The reply of the respondent is dated the 30th April, and it reads as follows:

'I am in receipt of your letter of the 29th April, 1959 enclosing the necessary documents to enable me to prove your claim in the above H matter, which will have my attention in due course.'

On the 12th May the respondent sent the following circular to all the creditors of the insolvent estate, including the appellant:

'Re: Insolvent Estate New Way Tailors, Umgeni Road, Durban, the individual partners of which are Vala Dheda and Naran Dheda.

I have to advise you that the estate of New Way Tailors of 259 Umgeni Road, Durban, and the individual partners, Vala Dheda and Naran Dheda, were placed under provisional sequestration by the Supreme Court of South Africa (Durban and Coast Local Division) on the 17th February, 1959, and I was appointed provisional trustee by the Master of the Supreme Court of the three estates on the 18th March, 1959.

Hoexter JA

The final order was subsequently granted and at the first meeting of creditors I was elected trustee. The Master of the Supreme Court confirmed my appointment under certificate of appointment dated 22nd April, 1959.

New Way Tailors:

According to the 'statement of debtor's affairs' lodged by the partners or the insolvent firm with the Master of the Supreme Court, the following financial position was disclosed.

Liabilities		Assets
Sundry creditors	£2,138 14 10	Stock-in-trade	£599 16 10
		Fixtures and fittings	49 0 0
		Sundry debtors	239 0 10
		Deficiency	1,197 17 2
	£2,135 14 10		£2,135 14 10

B As far as I am aware, at this stage there are no preferent creditors, other than administration rental. I have vacated the premises in order to save further rental, and removed the assets for storage pending disposal of same.

The deficiency shown as £1,197 17s. 2d. may be greater, as no provision has been made in the sundry debtor's annexure for bad and doubtful debts.

C There appears to be no danger of a contribution and I therefore enclose the necessary documents to enable you to prove your claim in this matter.

Vala Dheda and Naran Dheda.

The 'statement of affairs' submitted by the partners discloses no assets or liabilities.

If there is any further information you may require, please do not hesitate to communicate with me.'

D On the 28th May, at the second meeting of creditors, the respondent proved the appellant's claim...