PMG Motors Kyalami (Pty) Ltd (in liquidation) and Another v Firstrand Bank Ltd (Wesbank Division)

Firstrand Bank Ltd (Wesbank) concluded floor plan instalment sale agreements with several motor vehicle dealerships in the PMG group, reserving ownership of vehicles until full payment. In January 2009 Wesbank lawfully cancelled the agreements and demanded return of the vehicles, which were collected and sold. Shortly thereafter the dealerships placed themselves in liquidation. Acting under s 84(2) of the Insolvency Act, the liquidators demanded that Wesbank pay over the proceeds of sale, which Wesbank did. Wesbank later contended that s 84(2) was inapplicable because cancellation occurred before liquidation, and that the payments were made in error. It sought repayment under the condictio indebiti. The dealerships resisted the claim, raising jurisdictional objections, alleged factual disputes regarding timing of cancellation, procedural objections to motion proceedings, and reliance on a pending objection under s 111 of the Insolvency Act.

The appeal was dismissed with costs, including the costs of two counsel, payable jointly and severally by the appellants.

The case clarifies that liquidation does not strip a company of its principal place of business for jurisdictional purposes and affirms High Court jurisdiction based on residence and joinder. It also confirms the availability of the condictio indebiti to recover payments mistakenly made to liquidators where s 84(2) of the Insolvency Act is inapplicable, and provides guidance on assessing alleged factual disputes in motion proceedings.