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Summary law of insolvency comprehensive notes (Ex Parte Harmse)
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Comprehensive notes summarised from Hockly's Insolvency Law 9th edition textbook.
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law of insolvency comprehensive notes
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Law of Insolvency: Compulsory Sequestration
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law of insolvency: Effect of sequestration on legal position of insolvent
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By: cdelomoney • 4 year ago
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Ex Parte HarmseFacts
- Harmse (X) published a notice of intention to apply to court for the acceptance of the
surrender of his estate
- There was however defects in his application
- As a result his application was adjourned and the court gave him 11 days to supplement
the application
Defects in the original document included
- Not all X’s creditors were notified of his intention to surrender his estate
- Notice of such intention was not given to SARS/ to relevant trade union or employees of
X (if applicable)
o The abovementioned thus the raised question in court of whether the
advertisement of the notice of surrender was premature and whether this was
fatal to the application
- Notice was published 42 days prior to the date for which X had been set down for hearing
o This raised the question in court of whether the notice of surrender was given
timeously or whether it was given at all to the creditors of X
- According to the schedules put up with the application, X’s value of assets exceeded his
liabilities (liabilities are supposed to exceed value of assets)
o This raised the question in court of whether X was in fact insolvent
In attempt to rectify the defects, X’s attorney filed a supplementary affidavit which
confirmed that
- Notice was given, by registered post, to X’s known creditors, including some not having
received prior notification
- Attorney also added letters of valuation of X’s immovable properties registered in his
name
Issue
- Dealt with requirements of s6 of Insolvency Act, namely that a court may accept the
surrender of X’s estate if it is satisfied that
o X owns sufficient realizable property to pay all the costs of sequestration
o It will be to the advantage of creditors if X’s estate is sequestrated
Court
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