Arnold and Another v ABSA Bank Limited and Others : In re: EOH Managed Services (PTY) Ltd v Creswick (42876/2020) [2022] ZAGPJHC 689 (14 September 2022)

Arnold and Another v ABSA Bank Limited and Others : In re: EOH Managed Services (PTY) Ltd v Creswick (42876/2020) [2022] ZAGPJHC 689 (14 September 2022)

The court found that the applicants launched the urgent application on insufficient notice and failed to comply with practice directives, including proper service on the liquidators. After the application became moot, the applicants abandoned the relief sought but failed to make a reasonable proposal regarding costs, thereby causing unnecessary additional expense and burdening the court. The conduct of the applicants justified a punitive costs order on the attorney and client scale. The court was not persuaded that the applicants' attorney should be held liable de bonis propriis, as it was unclear whether he acted on his own initiative or on instructions. The sixth respondent was entitled...

Citation
[2022] ZAGPJHC 689
Parties
Applicant: Phillip Henry Arnold; Applicant: Ultimax Consulting (PTY) LTD; Respondent: ABSA Bank Limited; Respondent: First National Bank Limited; Respondent: Michael Fitzgerald N.O.; Respondent: Monica Cowin N.O.; Respondent: Ankia van Jaarsveldt N.O.; Respondent: EOH Managed Services (PTY) LTD; Respondent: Silver Touch IT Solutions (PTY) LTD; Respondent: The Master of the High Court; Respondent: Werksmans Attorneys; Respondent: Adam Creswick
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 September 2022
Case Number
42876/2020
Procedural Posture
Urgent Application / Costs Determination Following Abandonment of Urgent Application
Outcome
The main application is dismissed. Costs are awarded against the applicants on the attorney and client scale. The sixth respondent is granted leave to file a supplementary affidavit. The applicants are directed to pay the sixth respondent's costs for the hearing on 28 July 2022.
Judges
E F Dippenaar
Legal Topics
Costs Order, Abuse of Process, Attorney and Client Scale, De Bonis Propriis, Urgent Application Practice, Mootness
Civil Procedure Costs Order Abuse of Process Attorney and Client Scale De Bonis Propriis Urgent Application Practice Mootness

Case Brief

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Parties

Phillip Henry Arnold

Applicant

Ultimax Consulting (PTY) LTD

Applicant

ABSA Bank Limited

Respondent

First National Bank Limited

Respondent

Michael Fitzgerald N.O.

Respondent

Monica Cowin N.O.

Respondent

Ankia van Jaarsveldt N.O.

Respondent

EOH Managed Services (PTY) LTD

Respondent

Silver Touch IT Solutions (PTY) LTD

Respondent

The Master of the High Court

Respondent

Werksmans Attorneys

Respondent

Adam Creswick

Respondent

Procedural Posture

Urgent Application / Costs Determination Following Abandonment of Urgent Application

Legal Issues

  1. 1 Whether the applicants are liable for costs on an attorney and client scale following the abandonment of an urgent application.
  2. 2 Whether the applicants' attorney should be held liable for costs de bonis propriis.
  3. 3 Whether the sixth respondent is entitled to dismissal of the main application and a costs order.

Ratio Decidendi

The court found that the applicants launched the urgent application on insufficient notice and failed to comply with practice directives, including proper service on the liquidators. After the application became moot, the applicants abandoned the relief sought but failed to make a reasonable proposal regarding costs, thereby causing unnecessary additional expense and burdening the court. The conduct of the applicants justified a punitive costs order on the attorney and client scale. The court was not persuaded that the applicants' attorney should be held liable de bonis propriis, as it was unclear whether he acted on his own initiative or on instructions. The sixth respondent was entitled...

Court Disposition

The main application is dismissed. Costs are awarded against the applicants on the attorney and client scale. The sixth respondent is granted leave to file a supplementary affidavit. The applicants are directed to pay the sixth respondent's costs for the hearing on 28 July 2022.

Orders

  • The sixth respondent is granted leave to file the further supplementary affidavit of Jennifer Anne Smit dated 15 February 2022.
  • The main application brought by the applicants is dismissed.