Wishart, Grant Logan NO and Others v BHP Billiton Energy Coal South Africa (Pty) Limited and Others

Euro Coal (Pty) Ltd was placed in liquidation. Various creditors, including the appellants, sought to prove claims in the winding-up. The appellants attempted to prove their claims after the ordinary period for proof had expired and sought leave under s 44(1) of the Insolvency Act 24 of 1936. They also sought the expungement of a claim proved by BHP Billiton Energy Coal South Africa (Pty) Ltd from the Liquidation and Distribution (L&D) account. In the Gauteng Local Division, two exceptions were upheld against the appellants’ particulars of claim: first, that s 44(1) of the Insolvency Act did not apply to company liquidations; and second, that a court lacked jurisdiction to expunge a claim without a prior decision by the Master under s 407 of the Companies Act 61 of 1973. The appellants appealed both rulings to the Supreme Court of Appeal.

The appeal against the order upholding the first exception was upheld and that exception was dismissed with costs. The appeal against the order upholding the second exception was dismissed with costs, including the costs of two counsel.

The judgment clarifies the interaction between the Insolvency Act and the Companies Act in company liquidations. It confirms that s 44(1) of the Insolvency Act applies to the late proof of claims in winding-up proceedings and affirms the complementary roles of ss 44 and 366. It also definitively confirms that only the Master has the statutory power to expunge claims under s 407 of the Companies Act, with courts limited to a review role.