9 Oct 2014 Another one bites the dust! An interesting case was concluded that took two years and eight months to settle! Names and parties have been replaced to protect the applicant but the story is good!! In the matter between BLUE GRANITE NUMBER TWO (PTY) LTD [HEREAFTER BG] and the applicant in the High Court Gauteng Division started way back in 2010 when Brice applied for debt review. At that stage STANDARD BANK OF SOUTH AFRICA was the bondholder of an immovable property which was bought by Brice. However as the matter progressed it seems that BG alleged it was the owner of the property. During the investigation it surfaced that BG was a Special Purpose Vehicle [SPV] of STANDARD BANK and that for some reason the property has been ‘CEDED’ to BG – one cannot cede this property to BG as the only way to transfer property to a Special Purpose Vehicle is to sell the property to the SPV. The SPV is trading on the JSE and for this reason property cannot be CEDED –plain and simple. In February 2012 BG issued summons against the applicantB. The summons was defended and an application for summary judgment followed. The summary judgment was to be heard on Friday, 25 May 2012. On the eve of 24 May 2012 the applicant reached an verbal agreement with the attorney acting for BG. Applicant was only able to see the attorney of BG on Monday, 28 May 2012 to confirm the agreement. On 28 May 2012, the applicant was politely informed by the attorney for BG that on the Friday, 25 May 2012 in the absence of the applicant summary judgment has been obtained against the applicant ‘to have some security for the repayment of money due to BG’. This sparked the legal battle for the next two years and eight months. Applicant consulted with her attorneys and counsel in this regard. On advice from the legal team the applicant decided to apply for the rescission of the summary judgment dated 25 May 2012. In February 2013, the applicants application for the rescission of the summary judgment was dismissed with cost. Applicant applied for leave to appeal which was granted on 13 July 2013 to a full bench of the Gauteng Division. From August 2013 until 27 November 2013, whilst preparing for the appeal to be heard some information was sent between the attorneys of the applicant and BG. On 27 November 2013 the attorney for BG served a Rule 41 notice indicating that BG was abandoning its judgment of 25 May 2012 and that each party should pay its own cost. This notice sparked the events and litigation that followed. The applicant responded by bringing a Rule 41 application whereby BG should be ordered to pay the cost of the whole matter as from the date of summons up to the final hearing of the Rule 41 application. The applicants application was served on BG in January 2014 to be on the roll in February 2014. On the eve of the application being heard, BG served a Notice to Oppose the application – the application was removed from the roll. The application was again set down for May 2014 – again on the eve of the application being heard BG served the opposing affidavits – the matter for the second time, had to be removed from the roll. Fortunately this was the end of the delaying tactics by the attorney of BG. On or about 14 July 2014, in a last effort to derail this application, an email was sent by the attorney of BG to the applicants attorney whereby serious allegations re criminal charges and illegal actions was mentioned and the attorney of BG threatened to lay a charge against applicants attorney if this matter is not removed from the roll of 8 September 2014. The instructions by the applicant was clear – to get to the bottom of this matter. The application was completed and the application was enrolled for 8 September 2014 on the opposed roll. On or about 4 September 2014, the attorney of BG which seemed to be a final effort to derail this application, delivered an affidavit in the rule 41 application and laid a purported complaint with the Law Society of the Northern Province against the attorney of the applicant. The applicant answered to this allegations setting forth the circumstances and reasons which the attorney of BG did not disclose to the court. The matter was finally enrolled before the honourable Judge A.A. Louw who heard the matter. The claim by the attorney acting on behalf of BG claimed was that there was an agreement reached on 27 August 2013 which was disputed by the applicant. The fact of the matter was that the court found that there was no agreement as alleged by the attorney for BG between the parties. The applicants application for cost against BG succeeded and BG has to pay all the legal cost of the applicant for the whole matter as from the defending the application for summary judgment, the application for the rescission of the summary judgment, the application for leave to appeal, the period whilst preparing for the appeal and the final rule 41 application heard on 8 and 10 September 2014. It took some time, fine planning, precise execution, research, analysis of case law and principles, a persistent applicant and a good legal team to execute this matter. Much and good lessons learnt in this matter - the foremost lesson is that your opponent will play the unscrupulous, frustrating and delaying game until there is nothing more to play - to what extent? The game of money, money .........?
Posted on: Thu, 09 Oct 2014 13:52:35 +0000
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