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INSOLVENCY LAW 20120521 - Ettienne Barnard …

2015/05/06. INSOLVENCY LAW 2015 Presentations VARIOUS ASPECTS. Please note that slides of S Labuschagne &. E Barnard have been merged. There might be slight duplications Slides compiled by (eg. for Business Rescue). 2015/05/06 1 2015/05/06 2. INSOLVENCY LAW. INSOLVENCY LAW. COPYRIGHT: Barnard Labuschagne T/a Ettienne Barnard ATTORNEYS. SOMERSET WEST. 2015/05/06 4. INSOLVENCY Preparation Compulsory Sequestration NOM. Consulting Affidavit Taking Instructions Annexures Advising Requirements Voluntary Surrender Liquidation SOA Letter NOM NOM. Affidavit Affidavit Annexures Annexures Requirements Requirements Opposing Opposing 2015/05/06 5 2015/05/06 6. Anticipation 1. 2015/05/06. INSOLVENCY Preparation (2) EFFECTIVE CONSULTING. Rehabilitation GNL ICE BREAKER (to get set the client at ease and open up (Taking Instructions) Difference between consultation).

2015/05/06 4 advise client as to his/her/its interest • at first consultation, advise clients of consequences – advantages – disadvantages • insolvency affects status

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Transcription of INSOLVENCY LAW 20120521 - Ettienne Barnard …

1 2015/05/06. INSOLVENCY LAW 2015 Presentations VARIOUS ASPECTS. Please note that slides of S Labuschagne &. E Barnard have been merged. There might be slight duplications Slides compiled by (eg. for Business Rescue). 2015/05/06 1 2015/05/06 2. INSOLVENCY LAW. INSOLVENCY LAW. COPYRIGHT: Barnard Labuschagne T/a Ettienne Barnard ATTORNEYS. SOMERSET WEST. 2015/05/06 4. INSOLVENCY Preparation Compulsory Sequestration NOM. Consulting Affidavit Taking Instructions Annexures Advising Requirements Voluntary Surrender Liquidation SOA Letter NOM NOM. Affidavit Affidavit Annexures Annexures Requirements Requirements Opposing Opposing 2015/05/06 5 2015/05/06 6. Anticipation 1. 2015/05/06. INSOLVENCY Preparation (2) EFFECTIVE CONSULTING. Rehabilitation GNL ICE BREAKER (to get set the client at ease and open up (Taking Instructions) Difference between consultation).

2 Scenarios (dates NB) VS,CS & Liquidation GET FORMAL INFORMATION. NOM Consequences of FORMALITIES. INSOLVENCY on Legal Confidentiality;Fica;Costs;Deposit;Manda te;. Affidavit Action THE STORY (Use open ended questions). Annexures Administration of FORMULATE THEORY OF THE CASE. Requirements Insolvent Estates SPECIFIC QUESTIONS TO CLARIFY. General Meetings of Creditors REVISE THEORY OF THE CASE. Remember Timeline Order of Preference ADVISE. Pitfalls ( Business Rescue CONFIRM INSTRUCTIONS. INSOLVENCY ). 2015/05/06 7 2015/05/06 8. TAKING INSTRUCTIONS. AT FIRST CONSULTATION. AND ADVISING. FORMAL INFORMATION REQUIRED KNOW THE LAW. CLIENT FULL PARTICULARS (USE STANDARD CLIENT INFO SHEET LISTEN !!!!!! AT FIRST CONSULTATION). MARITAL STATUS GET AS MUCH INFO AS POSSIBLE.

3 ADVISABLE: POWER OF ATTORNEY COMMUNICATE THE PROCESS. AUTHORISING YOU/YOUR FIRM TO ACT. TARIFF APPLICABLE & INITIAL DEPOSIT. COMMUNICATE YOUR REQUIREMENTS. FICA (Financial Intelligence Centre Act) HOW CLIENT SHOULD PAY. Info CONSEQUENCES IF CLIENT DOES NOT MAKE. Warning? INTERIM PAYMENTS. IF LEGAL PERSON, WRITTEN RESOLUTION. 2015/05/06 9 2015/05/06 10. IDENTIFYING THE PROBLEM IDENTIFYING THE PROBLEM. AND ADVISING AND ADVISING-WHAT. WHAT ? SETTING ASIDE IMPEACHABLE TRANSACT. COMPOSITIONS. AFTER OBTAINING ALL THE FACTS, ID WHAT LEGAL JUDICIAL MANAGEMENT. AID THE CLIENT WANTS: BUSINESS RESCUE. VOLUNTARY SURRENDER OFFERS OF COMPROMISE. COMPULSORY SEQUESTRATION ADMINISTRATION OF INSOLVENT ESTATE. FRIENDLY OTHER FORM OF AID. NOT-FRIENDLY CONSOLIDATION OF DEBT.

4 LIQUIDATION AGREED MORATORIUM OF CREDITORS. NATIONAL CREDIT ACT Debt Relief (Debt Counselling). REHABILITATION. VOLUNTARY DISTRIBUTION. ADMIN ORDER (Magistrates' Court). 2015/05/06 11 2015/05/06 12. 2. 2015/05/06. DEBTOR. IN FINANCIAL TROUBLE. NON SEQ OR LIQ SEQUESTRATION/. OPTIONS LIQUIDATION. OPTIONS. CONSOLIDATION VOLUNTARY SURRENDER. MORATORIUM COMPULSORY SEQUESTRATION. COMPOSITION. ( Distribution) FRIENDLY. ADMINISTRATION ORDER. (MAGISTRATES' COURT ACT) NON-FRIENDLY. DEBT COUNSELLING/RELIEF. (NATIONAL CREDIT ACT) LIQUIDATIONS. COMPANIES ONLY: JUDICIAL MANAGEMENT CLOSE CORPORATIONS. (COMPANIES ACT). BUSINESS RESCUE. (NEW COMPANIES ACT) COMPANIES. 2015/05/06 13 2015/05/06 14. PRACTICAL: FINANCIAL PROBLEMS & ADVICE PRACTICAL: FINANCIAL PROBLEMS & ADVICE.

5 CLIENT: Mr Marvin Phoza SALARY: R22 500-00. CREDITORS: DEDUCTIONS & LIVING EXP: R20 500-00. Meat Emporium R90 000-00 Divorced 10 years ago Brochure Distributors CC R75 000-00 How will his ex-spouse be affected? Wobble Stationers (Pty)Ltd R30 000-00 One of two finalists in the One in A Million Dream ASSETS: Competition. (He was initially one of 100. VW Caddy Panel Van 1600cc R155 000-00 entrants)The final competition and draw takes place at the end of next month. Clothing & personal effects R 1 000-00. 2015/05/06 15 2015/05/06 16. IDENTIFYING THE PROBLEM IDENTIFYING THE PROBLEM. AND ADVISING AND ADVISING. WHERE? WHEN? HIGH COURT OR MAG COURT WHEN DOES CLIENT NEED THE RELIEF. WHAT DIVISION OR Jurisdiction IS IT URGENT OR NOT? REASONS FOR URGENCY.

6 HOW? HIGH COURT UNIFORM RULE 6(12). LONG FORM OF NOTICE OR MAGISTRATES' COURT RULE 9(12) & 55(5)(a). LUNA MEUBELVERVAARDIGERS V MAKIN 1977(4) SA 135 W. EX PARTE Rules compromise should be in proportion to urgency Ex Parte Reasons Giving of notice will defeat the purpose of relief sought 2015/05/06 17 2015/05/06 18. 3. 2015/05/06. ADVISE CLIENT AS TO HIS/HER/ITS INTEREST ADVISE CLIENT AS TO HIS/HER/ITS INTEREST. AT FIRST CONSULTATION, ADVISE CLIENTS OF CONSEQUENCES DIFFERS DEPENDING ON WHETHER CLIENT IS. ADVANTAGES CREDITOR OR DEBTOR. DISADVANTAGES eg CREDITOR WANTS TO COLLECT DEBT WHILE DEBTOR WANTS TO. INSOLVENCY AFFECTS STATUS EXTINGUISH THE OBLIGATION. IT DIVESTS INSOLVENT OF ESTATE eg WARN CREDITOR THAT OBLIG. ENDED. OBLIGATIONS TO PAY BECOME VOID AND MAY BE RECOVERED eg WARN CREDITOR RE DANGER OF.

7 BY TRUSTEE CONTRIBUTION. eg WARN CREDITOR THAT HE/SHE/IT MIGHT NOT. IF FREE RESIDUE INSUFFICIENT , CREDITORS WHO HAVE. RECOVER DEBT AND/OR COSTS. PROVED CLAIMS MUST PAY THE DEFFICIENCY. eg WARN DEBTOR RE STATUS CHANGE. eg WARN DEBTOR REHABILITATION MIGHT TAKE LONG. 2015/05/06 19 2015/05/06 20. ADVISE CLIENT ON WHAT SEQUESTRATION COSTS . ARE ETHICS IN INSOLVENCY LAW. SHERIFF'S CHARGES ATTORNEY HAS DUTY TO ADVISE CLIENT. MASTER'S FEES FRANKLY AND HONESTLY. COSTS OF SEQUESTR OR WINDING-UP AVOID ASSISTING CLIENT TO BREAK THE LAW. + OF DRAFTING STATEM OF AFFAIRS IMPRESS ON CLIENT THE NEED TO ABIDE BY. REMUNERATION OF TRUSTEES/LIQUI. THE LAW. COSTS OF SECURITY BOND BY TRUSTEES OR WARN CLIENT NOT TO BREAK THE LAW. LIQUIDATORS. 2015/05/06 21 2015/05/06 22.

8 ETHICS IN INSOLVENCY LAW INSOLVENCY LAW. THE ATTORNEY IS AN OFFICER OF THE COURT VARIOUS ASPECTS. IN DRAFTING DOCUMENTS FOR COURT. DUTY OF GOOD FAITH. IN EX PARTE APPLICATIONS. Slides compiled by DUTY OF UTMOST GOOD FAITH. EXPLAIN THIS TO THE CLIENT. 2015/05/06 23 2015/05/06 24. 4. 2015/05/06. ETHICS IN INSOLVENCY LAW. ETHICS IN INSOLVENCY LAW CASE LAW EXAMPLES. UTMOST GOOD FAITH DUTY IMPLIES: SCHLESINGER V SCHLESINGER 1979 (4) SA 342. ALL MATERIAL FACTS TO BE DISCLOSED (D) AT 349 A(EX PARTE APPLICATIONS). NON-DISCLOSURE OR SUPPRESSION OF FACTS. NEED NOT BE MALA FIDE TO INCUR THE PENALTY. In re THE LEYDSDORP & PIETERSDORP (TVL). OF RESCISSION. ESTATES LTD (IN LIQUIDATION) 1903 TS 254. COURT, ONCE INFORMED OF TRUE FACTS, HAS A. DISCRETION TO PRESERVE OR SET ASIDE ORDER BARCLAYS BANK V GILES 1931 TPD 9.

9 2015/05/06 25 2015/05/06 26. ETHICS IN INSOLVENCY LAW. FRIENDLIES . THESE ARE COMPULSORY SEQUESTRATIONS. WHERE OBJECT OF THE CREDITOR IS TO INTRODUCTION TO. ASSIST DEBTOR. PERMISSABLE BUT ATTORNEY SHOULD NOT INSOLVENCY LAW. ASSIST COLLUSION. DO NOT ABUSE PROCESS OF COURT. ATTORNEY SHOULD NOT BE A PARTY TO CREATING. AN ACT OF INSOLVENCY . 2015/05/06 27 2015/05/06 28. INTRODUCTION- A FURTHER STEP IN DEBT. INTRODUCTION- SOURCES COLLECTION. INSOLVENCY ACT 24 OF PRACTICE MANUALS OF AFTER JUDGEMENT CREDITOR HAS VARIOUS. 1936 (NB CLS committee on HIGH COURT DIVISIONS. revising). REMEDIES eg. BUILD UP INSOLV. WRIT OF EXECUTION. COMPANIES ACTS 61 OF PRECEDENTS FILE GARNISHEE ORDERS. 1973 & OF 2008 EMOLUMENTS ATTATCHMENTS. LSSA PLT PRACTICE MANUAL ORDER OF PAYMENT BY INSTALMENTS.

10 CLOSE CORP ACT 69 OF RE PROCEDURE. 1984 FINANCIAL ENQUIRY. CLS INSOLV. LAW COMMITTEE &. COMMON LAW (TEXT WEBSITE (REQUEST TO BE LISTED. SEQUESTRATION/LIQUIDATION IS A FURTHER. BOOKS) AS A SPECIALIST) OPTION AVAILABLE TO THE CREDITOR. CASE LAW TEXT BOOKS. 2015/05/06 29 2015/05/06 30. 5. 2015/05/06. INTRODUCTION- THE PURPOSE OF INTRODUCTION- INSOLVENCY Affects Many SEQUESTR/LIQUIDATION Commercial Contracts CONCURSUS CREDITORIUM ( COMING TOGETHER OF EMPLOYMENT CONTRACT. CREDITORS )+ FREEZING THE ESTATE. LEASES. EQUITABLE DISTRIBUTION IN LEGAL ORDER OF. PREFERENCE SALE OF BUSINESS. MECHANISM FOR ORDERLY EFFICIENT COLLECTION SALE OF IMMOVABLE PROPERTY. AND REALIZATION MORTGAGE BONDS. TO INVESTIGATE IMPEACHABLE TRANSACTIONS CREDIT AGREEMENTS.


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