Ashington and Another v Body Corporate of dryden Hall and Another (5516/2006) [2007] ZAKZHC 55 (28 November 2007)

Ashington and Another v Body Corporate of dryden Hall and Another (5516/2006) [2007] ZAKZHC 55 (28 November 2007)

The court found that the amended agreement required the special resolution to be passed within 180 days after receipt of the relevant documentation. The special resolution was only passed well after this period had expired. The reasonable time provision in clause 1.13.2 did not apply to this suspensive condition, as the agreement clearly distinguished between conditions with prescribed time limits and those without. The failure to fulfil the suspensive condition within the prescribed period rendered the agreement null and void. The application was accordingly dismissed with costs.

Citation
[2007] ZAKZHC 55
Parties
Applicant: Michael Ronald Clifford Ashington; Applicant: Paula Lynn Ashington; Respondent: The Body Corporate of Dryden Hall; Respondent: The Registrar of Deeds
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
28 November 2007
Case Number
5516/2006
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs.
Judges
Msimang
Legal Topics
Sectional Titles Act, Suspensive Conditions, Novation, Special Resolution, Contract Nullity
Land and Property Commercial and Corporate Sectional Titles Act Suspensive Conditions Novation Special Resolution Contract Nullity

Case Brief

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Parties

Michael Ronald Clifford Ashington

Applicant

Paula Lynn Ashington

Applicant

The Body Corporate of Dryden Hall

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the suspensive condition in the amended agreement was fulfilled within the prescribed period.
  2. 2 Whether the agreement became null and void due to non-fulfillment of the suspensive condition.
  3. 3 Whether the reasonable time provision applied to the suspensive condition in question.

Ratio Decidendi

The court found that the amended agreement required the special resolution to be passed within 180 days after receipt of the relevant documentation. The special resolution was only passed well after this period had expired. The reasonable time provision in clause 1.13.2 did not apply to this suspensive condition, as the agreement clearly distinguished between conditions with prescribed time limits and those without. The failure to fulfil the suspensive condition within the prescribed period rendered the agreement null and void. The application was accordingly dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.