Ex parte Cyrildene Heights (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 05 August 1964
• Hearing Date: 05 August 1964
• Court: Witwatersrand Local Division

E Trollip, J.:

This is an application under sec. 103 of the Companies Act for an order convening meetings of creditors of the applicant company to approve a certain arrangement entered into between the applicant company and its creditors. The company carries on the business of property owners in Johannesburg. It has an authorised share capital of R2,000 F divided into 1,000 shares of R2 each of which only eight shares have been issued, all fully paid up and equally held by Mrs. Margaret Ann Botbyl and her husband, Willem Cornelius Botbyl, who is insolvent. The main and only asset of the company is a multi-storey block of flats which is valued at R200,864. The liabilities of the company are, first, second and third mortgage bonds in favour of Koopkrag Spaarbank Beperk G amounting in all to R181,225; current liabilities which are estimated at R2,471; and in addition an amount of R25,518 which is owed by the company to the two Botbyls.

The two Botbyls are, as I have already indicated, the only shareholders and presumably the only directors of the company. They have endeavoured, H from time to time, to dispose of the shares in the company and of the company's assets but so far they have failed to reach any satisfactory agreement in regard thereto. However, the petition states that the trustees of Mr. Botbyl and Mrs. Botbyl herself have now entered into an agreement with one Foutopoulos in regard to the sale of the shares of the company. This agreement is annexed to the petition. It is between the two shareholders and Foutopoulos in terms of which the shareholders sell their shares in the company to Foutopoulos for R10 plus certain additional minor considerations which I need not

Trollip J

refer to. Foutopoulos, in terms of the agreement, undertakes to lend the company about R75,000 and the parties agree that through Foutopoulos it will raise R120,000 on a new first mortgage bond over the company's A property. The total proceeds of these arrangements, namely R195,000, are to be utilised to pay off the present bondholder and the concurrent creditors, other than the two Botbyls, and certain expenses in full. These payments are estimated to amount to about R188,300 which would leave a balance of about R6,700 which would be paid to the two Botbyls, B who have agreed (in Mr. Botbyl's case his trustees on his behalf) to accept it in full settlement of their claims against the company. It is to be noted that the company itself is not a party to this agreement between the Botbyls and Foutopoulos. In addition the agreement stipulates that it is to be subject to a condition that a so-called offer C of compromise, which is attached to and made part of the agreement, and which has to be made on behalf of the company by Mrs. Botbyl to its creditors along the lines indicated above, is sanctioned by the Court under sec. 103. This offer is to be made on behalf of the company and its effect is as stated above, namely that the company will pay all the secured and concurrent creditors except the Botbyls in full, and the...