Absa Bank Ltd v Anniciello and Another (8859/2018) [2021] ZAWCHC 91 (22 April 2021)

Absa Bank Ltd v Anniciello and Another (8859/2018) [2021] ZAWCHC 91 (22 April 2021)

The court found that the second defendant's applications for intervention and postponement were misconceived and pursued in her personal capacity, motivated by her interests in pending matrimonial proceedings rather than the interests of the Trust. The Trust was not properly represented in the litigation, and mechanisms existed under the trust deed for deadlock-breaking, which the second defendant did not pursue. The court held that there was no plausible basis for the Trust to bear the costs incurred by the plaintiff in opposing the second defendant's applications. The plaintiff's request for attorney and client costs was rejected, as the contractual costs clauses did not apply to...

Citation
[2021] ZAWCHC 91
Parties
Plaintiff: Absa Bank Ltd; Defendant: A. Anniciello; Defendant: T.T. Anniciello
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 April 2021
Case Number
8859/2018
Procedural Posture
Civil Procedure / Costs Determination Following Judgment by Agreement
Outcome
Costs awarded against the second defendant in her personal capacity on a party and party scale.
Judges
A.G. Binns-Ward
Legal Topics
Costs Award, Trustee Representation, Intervention Application, Postponement Application
Civil Procedure Costs Award Trustee Representation Intervention Application Postponement Application

Case Brief

Summary, issues, holding and outcome

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Parties

Absa Bank Ltd

Plaintiff

A. Anniciello

Defendant

T.T. Anniciello

Defendant

Procedural Posture

Civil Procedure / Costs Determination Following Judgment by Agreement

Legal Issues

  1. 1 Whether the second defendant should bear the costs of her intervention and postponement applications in her personal capacity.
  2. 2 Whether the Trust or the first defendant should be liable for the costs incurred by the plaintiff in opposing the second defendant's applications.
  3. 3 Whether a punitive costs order is justified against the second defendant.

Ratio Decidendi

The court found that the second defendant's applications for intervention and postponement were misconceived and pursued in her personal capacity, motivated by her interests in pending matrimonial proceedings rather than the interests of the Trust. The Trust was not properly represented in the litigation, and mechanisms existed under the trust deed for deadlock-breaking, which the second defendant did not pursue. The court held that there was no plausible basis for the Trust to bear the costs incurred by the plaintiff in opposing the second defendant's applications. The plaintiff's request for attorney and client costs was rejected, as the contractual costs clauses did not apply to...

Court Disposition

Costs awarded against the second defendant in her personal capacity on a party and party scale.

Orders

  • The second defendant shall be liable in her personal capacity for the plaintiff’s costs of suit in the second defendant’s application for leave to intervene in the action in her personal capacity, including the costs reserved on 25 March 2021 and in her attendant application for the postponement of the proceedings...
  • The second defendant shall also be liable in her personal capacity for the plaintiff’s costs incurred in respect of the hearing on costs on 21 April 2021.