Absa Bank Ltd v Storm and Another (67427/2011) [2013] ZAGPPHC 15 (1 February 2013)

Absa Bank Ltd v Storm and Another (67427/2011) [2013] ZAGPPHC 15 (1 February 2013)

The court found that the applicant, as owner of the vehicle, was entitled to demand its return upon tender of adequate security for the second respondent’s lien. The security offered by the applicant, consisting of payment for repair costs plus VAT and a banker’s guarantee for storage fees plus VAT, was deemed sufficient to substitute the lien. The second respondent’s claim for additional costs related to the courtesy vehicle and legal costs was rejected, as those obligations arose from an agreement to which the applicant was not a party. The court exercised its discretion, holding that the applicant should not be deprived of its property unreasonably and that the guarantee provided...

Citation
[2013] ZAGPPHC 15
Parties
Applicant: Absa Bank Limited; Respondent: Cornelius Johannes Jacob Storm; Respondent: John Morrison Panelbeaters and Spraypainters CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 February 2013
Case Number
67427/2011
Procedural Posture
Urgent Application / Application for Return of Property and Determination of Adequacy of Security
Outcome
Application granted with costs.
Judges
M J Teffo
Legal Topics
Lien, Adequate Security, Instalment Sale Agreement, Right of Retention, Repairer S Lien, Storage Fees
Civil Procedure Commercial and Corporate Lien Adequate Security Instalment Sale Agreement Right of Retention Repairer S Lien Storage Fees

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Parties

Absa Bank Limited

Applicant

Cornelius Johannes Jacob Storm

Respondent

John Morrison Panelbeaters and Spraypainters CC

Respondent

Procedural Posture

Urgent Application / Application for Return of Property and Determination of Adequacy of Security

Legal Issues

  1. 1 Whether the applicant's tender and guarantee constitute adequate security for the second respondent's lien over the vehicle.
  2. 2 Whether the second respondent is entitled to claim storage costs and other expenses from the applicant.
  3. 3 Whether the applicant is required to provide security for legal costs and VAT in the guarantee.

Ratio Decidendi

The court found that the applicant, as owner of the vehicle, was entitled to demand its return upon tender of adequate security for the second respondent’s lien. The security offered by the applicant, consisting of payment for repair costs plus VAT and a banker’s guarantee for storage fees plus VAT, was deemed sufficient to substitute the lien. The second respondent’s claim for additional costs related to the courtesy vehicle and legal costs was rejected, as those obligations arose from an agreement to which the applicant was not a party. The court exercised its discretion, holding that the applicant should not be deprived of its property unreasonably and that the guarantee provided...

Court Disposition

Application granted with costs.

Orders

  • The application is granted with costs.
  • The applicant is ordered to correct the guarantee and make provision for the amount tendered to include VAT to accord with prayer 1 of the Notice of Motion.