*NURSING > A-Level Question Paper > MRL3701 ASSIGNMENT 1 SEMESTER 1 - 2022 (All)

MRL3701 ASSIGNMENT 1 SEMESTER 1 - 2022

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Discuss what this action above is called and refer to relevant legislation. Also advise Alice as to whether she will succeed in her action to apply for Voluntary Surrender. The action above is calle... d THE ACT OF INSOLVENCY. Relevant Legislation: Hockly’s, 3.1.2 (i) (g) The “Act of Insolvency” in this question deals with s 8(g) of Insolvency Act: Notice of inability to pay:  Notice of inability to pay occurs if Alice gives notice in writing to any one of her creditors that she is unable to pay any of her debts.  The Notice must be in writing: Alice does not commit this act of insolvency by informing her brother orally that she cannot pay her debts, although she does provide her brother with evidence of actual insolvency (Patel v Sonday 1936 CPD 466 469).  The words ‘any of her debts’ are capable of being interpreted as meaning either ‘any one of her debts’ or ‘all of her debts’, but the courts, following the Afrikaans version of s 8 (g) -‘een of ander van syskulde’-have adopted the former construction.  Consequently, Alice, the debtor commits an act of insolvency if she gives notice of inability to pay any single debt. A typical example of this act of insolvency occurs where a debtor (Alice), (or her attorney) writes to a creditor (Alice’s brother) informing him that she is not in a position to pay the debt for the time being and offering to pay it in instalments (Goldblatt’s Wholesale (Pty) Ltd v Damalis 1953 (3) SA 730 (O) 732).  Alice must have intended to give notice of her inability to pay (see, eg, Barlows (Eastern Province) Ltd v Bouwer 1950 (4) SA 385 (E) 390), but the court has regard, not so much to Alice’s subjective intention, as to whether a reasonable person in the position of the receiver and having knowledge of the relevant circumstances would have interpreted the document in question to mean that the Alice cannot pay her debts (Court v Standard Bank of SA Ltd; Court v Bester NO & others (supra) 134. Even if the requirements concerned are proved, the court still has a discretion to dismiss Alice’s application for Voluntary Surrender. [Show More]

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