This is an application for the provisional winding-up of a close corporation (the respondent) on the basis that it is unable to pay its debts. After the application was launched, but before it was heard, an application was brought in the Local Division in Durban for an order placing the respondent under supervision and commencing business rescue proceedings in terms of section 131 of the Companies Act. The issue before me was whether the effect of the business rescue application was to suspend the liquidation application in terms of s 131(6).

The background is briefly as follows. The applicant, Standard Bank, entered into seventeen instalment sale agreements with the respondent during the period 2010 to 2013 relating to vehicles, plant and equipment. The bank’s case is that the respondent fell into arrears with the instalments and that in spite of several written demands it continues to be in arrears, which amounted to some R927 490 when the liquidation application was launched. The respondent does not dispute that it is in arrears, but challenges the calculation of the amount outstanding and the bank’s entitlement to cancel the agreements. On any basis it seems clear that the respondent is currently commercially insolvent as it is unable to pay its debts as they fall due.