Rose v Kemp [1914] ZAWLD 7 (9 April 1914)

lnsolvency.-Dischmrge of .provisional order of sequestration.Agreement thereon to transfer assets from insolvent to a creditor. - Construction. - Cession. Provisional trustee. - Measure of remuneration.-Law 13 of 1895, sec. 105.

An insolvent, under a provisional order of sequestration, agreed with plaintiff (a preferent creditor) with his concurreht· creditors, and with defendant, his provisional· trustee, that for certain considerations the provisional order should
be discharged, and that thereon the insolvent should transfer to plaintiff his. business and assets, t!) the possession of which plaintiff was then to be entitled,
and that plaintiff should pay the costs of the sequestration, of the discharge thereof and the remuneration of the trustee. Defendant signed the agreement" merely as consenting thereto in his capacity as provisional trustee," and all.the parties- bound themselves for the due pedormance of the agreement. The provisional order was discharged, and the unrealised assets (the whole of which were movables) were handed over to plaintiff by defendant, with the exception of a sum of £227 which defendant, in his administration account, claimed to retain as remuneration, being five per cent. of the total value of the assets. The Master had not taxed the account on the ground that, by the supersession of the provisional order, he was functus officio. Plaintiff claimed th~t defendant was not entitled to more than £27, being five percent. of the assets actually realised by defendant, and sued for the balance. Held, that as, on discharge of the provisional order, the insolvent's assets, together
with the right to an account from the trustee and to any balance shewn, revested in the insolvent, the agreement operated ipso jure as a transfer and
cession of the said assets and rights to the plaintiff. Held, further, that in face of the ,agreement the insolvent's assent to the defendant's claim could not
bind the plaintiff. Held, further, that a charge on a percentage basis of the value of assets that were
once-in the trustee's hands was no measure.of what was a reasonable remuneration, that the true measure was the work actually done by him, and that in the
circumstances fifty guineas over and above out-of-pocket expenses (which included a manager's services) was fair and reasonable. Quaere, whether as to taxing the account the Master was functus officio by the supersession of the provisional order.