COMMERCIAL LAW – Prescribed action
The summons was NOT issued to the CC but the sole member of the cc?
I was wondering if you could comment on the following?
In 2009 I am personally summonsed NOT the Closed Corporation.
In 2009 I survive a summary judgement and we go to court in 2012.
Costs are awarded to me and we go to the actual trial in 2014 after 2012 adjournment.
Absolution Judgment is lost for me
In next trial is in 2016 and last trial date and judgement is 2017.
It is ascertained in 2014 that the closed corporation has lapsed via (CIPRO).
A) Does a closed corporation that has lapsed have any rights? Like an estate of a legal person?
B) The cc is never summonsed or has a trial – at all?
In 2017 the judge says that in any event I am liable for the cc’s debts – but the CC has never had a trial to defend itself?
It goes without saying that the prescription period FOR THE CC would be 2009+3 years = 2012?
Has the claim against the cc – which was never summonsed or had a trial to defend, not proscribed?
It is certainly beyond the prescription period now – due to the plaintiff actions of suing the sole member.
The judge is saying that as the CC was deregistered that the solemember should now pay even after the CC was never summonsed and EIGHT years have passed since they incorrectly
sued the sole member personally.
The process seems excipiable as the CC has not had a chance to defend itself?
Have I explained this correctly? Does it make sense
Good Afternoon George, from the history you have diligently given it is obvious that you are quite conversant in commercial law and you need some confirmation in respect of your submissions. You are quite correct when you say that the CC can be summonsed in its legal capacity, that debt expires after the lapse of 3 years if it has not been estopped and that in 2014 the CC would have lapsed with no locus standi after that….However remember that the sole director/or directors of the CC can always be liable in his/their personal capacity. Lastly despite the enclosed information it would be fatal for any legal comment and advice without having had access to all the relevant documents, papers and records hence I advise you to take the issue further if you so wish with your legal counsel who can provide a legal opinion for you in this regard and what steps you need to take or not.