Anderson v Batley (3095/09) [2010] ZAECGHC 20 (12 March 2010)

Anderson v Batley (3095/09) [2010] ZAECGHC 20 (12 March 2010)

The court held that the proposed amendments to the particulars of claim were excipiable because they conflicted with the sole memorial and non-variation clause in the written agreement. The applicant's attempt to rely on oral terms was inconsistent with the express provision that only written and signed variations would be effective. Furthermore, the damages claimed, including the project management fee, estimated cost of water, and estimated cost of work, were not supported by the written agreement, which stipulated that the plaintiff would undertake the project at no charge except for disbursements approved in writing. No exceptional circumstances were presented to justify allowing the...

Citation
[2010] ZAECGHC 20
Parties
Applicant: Mark Gregory Anderson; Respondent: Margaret Louis Batley
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
12 March 2010
Case Number
3095/09
Procedural Posture
Urgent Application / Application to Amend Particulars of Claim
Outcome
Application to amend particulars of claim dismissed with costs.
Judges
Plasket
Legal Topics
Amendment of Pleadings, Excipiable Pleading, Sole Memorial Clause, Non Variation Clause, Damages Claim, Breach of Contract
Civil Procedure Amendment of Pleadings Excipiable Pleading Sole Memorial Clause Non Variation Clause Damages Claim Breach of Contract

Case Brief

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Parties

Mark Gregory Anderson

Applicant

Margaret Louis Batley

Respondent

Procedural Posture

Urgent Application / Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the proposed amendments to the particulars of claim render the pleading excipiable.
  2. 2 Whether the existence of a sole memorial and non-variation clause in the written agreement precludes reliance on oral terms.
  3. 3 Whether the damages claimed are consistent with the written agreement.

Ratio Decidendi

The court held that the proposed amendments to the particulars of claim were excipiable because they conflicted with the sole memorial and non-variation clause in the written agreement. The applicant's attempt to rely on oral terms was inconsistent with the express provision that only written and signed variations would be effective. Furthermore, the damages claimed, including the project management fee, estimated cost of water, and estimated cost of work, were not supported by the written agreement, which stipulated that the plaintiff would undertake the project at no charge except for disbursements approved in writing. No exceptional circumstances were presented to justify allowing the...

Court Disposition

Application to amend particulars of claim dismissed with costs.

Orders

  • The application to amend the particulars of claim is dismissed.
  • The applicant is ordered to pay the costs of the application.