Guimares v Volkov (2) (APPEAL 11 of 2001) [2011] NAHC 358 (13 December 2011)

Guimares v Volkov (2) (APPEAL 11 of 2001) [2011] NAHC 358 (13 December 2011)

The applicant established that the default judgment was erroneously granted in his absence because he was not informed of the trial date by his legal practitioners, and had the court been aware of this, it may not have granted the default judgment. The requirements for rescission under rule 44(1)(a) were met.

Citation
[2011] NAHC 358
Parties
Applicant: Abel P A Guimaraes; Respondent: Victor Volkov
Court
High Court
Jurisdiction
Namibia
Judgment Date
13 December 2011
Case Number
APPEAL 11 of 2001
Procedural Posture
Civil / Application for Rescission of Default Judgment
Outcome
application for rescission granted
Legal Topics
Rescission of Judgment, Default Judgment, Striking Out Affidavits, Acknowledgment of Debt
Source Language
English
Civil Procedure Rescission of Judgment Default Judgment Striking Out Affidavits Acknowledgment of Debt

Case Brief

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Parties

Abel P A Guimaraes

Applicant

Victor Volkov

Respondent

Procedural Posture

Civil / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted in the absence of the applicant
  2. 2 Whether the applicant has shown grounds for rescission under rule 44(1)(a) or common law
  3. 3 Whether certain affidavit paragraphs should be struck out as hearsay or new matter

Ratio Decidendi

The applicant established that the default judgment was erroneously granted in his absence because he was not informed of the trial date by his legal practitioners, and had the court been aware of this, it may not have granted the default judgment. The requirements for rescission under rule 44(1)(a) were met.

Court Disposition

application for rescission granted

Orders

  • The impugned statements in Paragraphs 27 and 38, paragraph 38 of the applicant’s founding affidavit as well as paragraph 18.1 of the applicant’s replying affidavit are struck out.
  • The applicant is ordered to pay the costs occasioned by the application to strike out.