Zhao v Hou (I 247 of 2015) [2022] NAHCMD 371 (28 July 2022)

Zhao v Hou (I 247 of 2015) [2022] NAHCMD 371 (28 July 2022)

The defendants were present and represented at the hearing where their defence was struck and were given an opportunity to explain their default but failed to do so. The orders were not granted in their absence or erroneously. The requirements for rescission under rule 103(1) and common law were not met. The proper...

Source-derived case information.

Citation
[2022] NAHCMD 371
Parties
Plaintiff: Xizhong Hou; Plaintiff: Right Path Investments (Pty) Ltd; Defendant: Xizhou Zhao; Defendant: Heibei Xinyiang Construction CC; Defendant: Erf One Eight Five Three Klein Windhoek Property CC; Defendant: Remainder of Erf One One Four Klein Windhoek Property CC
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
28 July 2022
Case Number
I 247 of 2015
Procedural Posture
Civil / Ruling on Application for Rescission of Judgment
Outcome
Application for rescission dismissed
Legal Topics
Rescission of Judgment, Default Judgment, Non Compliance With Court Orders, Case Management
Source Language
english
Civil Procedure Rescission of Judgment Default Judgment Non Compliance With Court Orders Case Management

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Parties

Xizhong Hou

Plaintiff

Right Path Investments (Pty) Ltd

Plaintiff

Xizhou Zhao

Defendant

Heibei Xinyiang Construction CC

Defendant

Erf One Eight Five Three Klein Windhoek Property CC

Defendant

Remainder of Erf One One Four Klein Windhoek Property CC

Defendant

Procedural Posture

Civil / Ruling on Application for Rescission of Judgment

Legal Issues

  1. 1 Whether the orders of 17 November 2021 and 3 December 2021 should be rescinded under rule 103(1) or common law
  2. 2 Whether the orders were erroneously sought or granted in the absence of the defendants
  3. 3 Whether the defendants provided a reasonable explanation for default and prospects of success

Ratio Decidendi

The defendants were present and represented at the hearing where their defence was struck and were given an opportunity to explain their default but failed to do so. The orders were not granted in their absence or erroneously. The requirements for rescission under rule 103(1) and common law were not met. The proper remedy would have been appeal or review, not rescission.

Court Disposition

Application for rescission dismissed

Orders

  • The first and second defendants’ application for rescission of the court orders dated 17 November 2021 and 3 December 2021 is dismissed.
  • The first and second defendants are ordered to pay, jointly and severally, the plaintiffs’ costs occasioned by the application.