BS Finance Corp (Pty) Ltd v Trusting Engineering (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Kirk-Cohen J
• Judgment Date: 29 September 1986
• Hearing Date: 29 September 1986
• Court: Witwatersrand Local Division

Kirk-Cohen J:

This is an opposed motion in which the applicant seeks the liquidation of the respondent. The respondent has filed answering affidavits and the applicant replying B affidavits.

Mr Rosenzweig, on behalf of the applicant, seeks an order in terms of a draft handed in which reads as follows:

'(1)

that this application be postponed to 30 September 1986;

(2)

that Salianos Konstas, the sole director and shareholder of the respondent, be directed to pay all of the costs of this application personally on the scale as between attorney and own C client.'

To understand the submissions made, I set out the following relevant facts:

1.

The application was served on the respondent on 23 April 1986.

2.

The answering affidavits were filed on 23 May 1986.

3.

The deponent to the answering affidavit is the D aforementioned Stalianos Konstas (Konstas) who is the sole director and shareholder of the respondent company.

4.

In the answering affidavits Konstas denied vehemently that the respondent was unable to pay its debts and painted a rosy picture of the respondent's financial E stability.

5.

Lengthy replying affidavits were filed, dealing in detail with the various allegations made by Konstas.

6.

At the conclusion of the replying affidavits the applicant sought the following relief:

'In the premises I pray that it may please the above honourable Court to grant to the applicant the relief F sought in the notice of motion, to which my founding affidavit is attached. As a mark of its displeasure at the blatantly untruthful and misleading information placed before this honourable Court by Konstas, on behalf of the respondent, more particularly relating to the alleged investigations carried out by Veritimatos, I respectfully submit that the above honourable Court should order that:

(1)

G all costs of opposition; or

(2)

at the very least the additional costs incurred in order to meet such false allegations be paid by Konstas personally on the scale as between attorney and his own client.'

The replying affidavits were filed on 25 June 1986

7.

The applicant, having obtained a date for hearing on 2 H September 1986, set the matter down for hearing for that day by notice served on 5 August 1986.

8.

On 19 August 1986 one Kostas Grammanos brought an urgent application in this Court for the liquidation of the respondent under case No 18436/86. In the founding affidavit no mention is made of the I application before me. In a supporting affidavit Konstas, on behalf of the respondent, supports the liquidation; he states that he is indeed the sole shareholder and director of the respondent, that he agrees with the facts set out in the application and accepts short service on behalf of the respondent of the notice of motion. He supports the application for J the liquidation of the

Kirk-Cohen J

A respondent 'in the interests of the general body of respondent's creditors'. He made no mention of the present application in what was a 'friendly' liquidation and a provisional order was granted, returnable on 30 September 1986. There is also no mention in the said application, supported as it is by Kostas, of another opposed application for the B liquidation of the respondent company launched on 7 July 1986 by National Trading Co Ltd. It was opposed by the respondent but as yet no opposing affidavits have been filed although the respondent was placed on terms to have done so by 27 July 1986.

9.

On 28 August 1986 the present applicant's attorneys C wrote a letter to the respondent's attorneys which was served, according to the endorsement thereon, at 4.10 pm on that date. It reads as follows:

'We refer to the writer's telephonic conversation with your Mr Fanaroff yesterday afternoon and confirm your Mr Fanaroff's advice that your client was provisionally wound up on 19 August 1986 in the D Supreme Court of South Africa, (Witwatersrand Local Division). We must advise that it is our client's intention to seek, when this matter comes before Court next week, an order directing that:

(1)

all of the costs of the opposed proceedings; or

(2)

all costs of opposition to our client's application; or

(3)

at the very least, the additional costs incurred in order to meet the numerous false allegations made in your client's answering affidavit

E be paid by your client's sole shareholder and director, Stalianos Konstas, in person and on the scale as between attorney and his own client; Konstas deposed to the numerous false allegations aforesaid on behalf of your client in its answering affidavit.'

10.

Post-haste, and 20 minutes after service of that F letter, there was served upon the applicant's attorney a notice of withdrawal as attorneys of record for the respondent company.

11.

On 1 September 1986 the...