Di Savino v Nedbank Namibia Ltd (SA 24 of 2010) [2012] NASC 3 (21 June 2012)

Di Savino v Nedbank Namibia Ltd (SA 24 of 2010) [2012] NASC 3 (21 June 2012)

The appellant raised bona fide triable issues regarding release from suretyship due to a material variation of the principal contract and the sufficiency of the particulars of claim to support claims for default interest and repayment. The opposing affidavit, though unsatisfactory, together with the pleadings and agreements, disclosed sufficient grounds to refuse summary judgment and grant leave to defend.

Citation
[2012] NASC 3
Parties
Appellant: Antonio Di Savino; Respondent: Nedbank Namibia Limited
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
21 June 2012
Case Number
SA 24 of 2010
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment in the Supreme Court
Outcome
Appeal allowed; summary judgment refused; leave to defend granted.
Legal Topics
Summary Judgment, Suretyship, Variation of Contract, Release From Suretyship, Interest on Debt
Source Language
English
Civil Procedure Contract Law Banking Law Summary Judgment Suretyship Variation of Contract Release From Suretyship Interest on Debt

Case Brief

Summary, issues, holding and outcome

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Parties

Antonio Di Savino

Appellant

Nedbank Namibia Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment in the Supreme Court

Legal Issues

  1. 1 Whether the appellant was released from suretyship due to a material variation of the principal contract without his consent
  2. 2 Whether the particulars of claim support claims for default interest and repayment under the relevant agreements
  3. 3 Whether new defences can be raised on appeal in summary judgment proceedings

Ratio Decidendi

The appellant raised bona fide triable issues regarding release from suretyship due to a material variation of the principal contract and the sufficiency of the particulars of claim to support claims for default interest and repayment. The opposing affidavit, though unsatisfactory, together with the pleadings and agreements, disclosed sufficient grounds to refuse summary judgment and grant leave to defend.

Court Disposition

Appeal allowed; summary judgment refused; leave to defend granted.

Orders

  • The appeal is allowed.
  • The appellant is ordered to pay the respondent’s costs of the appeal, including costs of one instructing and one instructed counsel.