In the 2011 budget speech, the Minister of Finance announced that the Government will consider exempting taxable capital gains or ordinary revenue imposed on an insolvent debtor if the debt owing by the debtor is cancelled or reduced.
A common misconception surrounding an ante nuptial contract is that it provides married parties some protection when insolvency ensues. However, this is not necessarily the case. As many a solvent spouse discovers upon insolvency of their partner, the policy of the collection of maximum assets for the advantage of creditors actually overwhelms all other policies in South African insolvency law.
A service provider can rely on a debtor/creditor as security for its claim. This type of lien, conferred by virtue of an agreement between the creditor and the debtor, is a sub-species of a broader right to retain physical control of another’s property, whether movable or immovable, as a mechanism for securing payment of a claim, until the claim has been met. In other words, the service provider, who makes provision for such a lien in its contract, can refuse to release goods which are in its possession until it has received payment.
Another important judgement for Business Rescue was handed down in the North Gauteng High Court by his Honorable Justice Legodi in the matter of P T van Staden v Angel Ozone Products CC (In Liquidation) & others on the 12th of October 2012.
The Applicant (member) of a Close Corporation named Angel Ozone Products CC (First Respondent) brought an application in terms of Section 131 of the Companies Act, Act 71 of 2008 (“new Act”) more than a year after the Magistrates Court of Pretoria had granted a final liquidation order.
Can one proceed with legal action against a surety where the principal debtor is under business rescue? A recent judgment considered this question.
Briefly, the facts were that the Plaintiff issued summons against the Defendant based on a suretyship which the Defendant executed, binding himself for the debt of two entities - both of which were in liquidation.
With the global recession still being felt, times are tough and many companies are struggling to collect debts from errant customers or clients. In these cases, a winding-up application is arguably the most effective way to collect substantial debt as the following example shows.
A long dispute between a father and son, which progressed through various courts, culminated in an application focusing on the court’s powers under section 387(3) of the old Companies Act (61 of 1973). That dispute was heard in the Western Cape High Court, which gave judgment on 10 July 2024 in the matter of Jurgens Johannes Steenkamp N.O. & 3 others v Mark Wehrley & 3 others.
This is an important update in the Australian corporate and insolvency law context because, in BTI 2014 LLC v Sequana SA and others [2022] UKSC 25, the UK Supreme Court (being the UK’s highest court) confirmed the existence of a duty owed by directors to creditors in certain circumstances (creditor duty). Under the common law and equity (together, general law), there is a gateway to applicability of the creditor duty in Australia.
On 20 October 2021, the Supreme Court of Appeal (“the SCA”) handed down a judgement in the matter of JP Markets v FSCA (Case no 460/2021) [2021] ZASCA 148 (20 October 2021) in terms of which the SCA set aside the decision of the High Court to place JP Markets (Pty) Ltd (“JP Markets”) into liquidation, finding that it was not just and equitable.