Asmall v Tornotrim (Pty) Ltd (D6486/2018) [2019] ZAKZDHC 2 (22 February 2019)

Asmall v Tornotrim (Pty) Ltd (D6486/2018) [2019] ZAKZDHC 2 (22 February 2019)

The court found that the agreement for the sale of Nu-Store Tongaat consisted of both written and oral components, and both parties acted on this basis. The respondent breached the agreement by failing to pay the required instalments, and did not remedy the breach after being placed on terms. The applicant was therefore entitled to cancel the agreement. The respondent's reliance on the integration clause was rejected, as it was common cause that the oral agreement formed part of the contract. The respondent's failure to pay, without cancelling the agreement, constituted a breach. The applicant was entitled to restitution, including return of the business against repayment of amounts...

Citation
[2019] ZAKZDHC 2
Parties
Applicant: Osman Asmall; Respondent: Tornotrim (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
22 February 2019
Case Number
D6486/2018
Procedural Posture
Urgent Application / Application for Return of Business Following Cancellation of Sale Agreement
Outcome
Application granted; agreement declared validly cancelled; business to be returned to applicant against repayment; costs awarded to applicant; matter referred to authorities.
Judges
Ploos van Amstel
Legal Topics
Contract Cancellation, Restitution, Sale of Business, Oral and Written Agreements
Commercial and Corporate Civil Procedure Contract Cancellation Restitution Sale of Business Oral and Written Agreements

Case Brief

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Parties

Osman Asmall

Applicant

Tornotrim (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Return of Business Following Cancellation of Sale Agreement

Legal Issues

  1. 1 Whether the agreement for the sale of Nu-Store Tongaat was validly cancelled.
  2. 2 Whether the applicant is entitled to restitution and return of the business.
  3. 3 Whether the respondent's breach justified cancellation of the agreement.

Ratio Decidendi

The court found that the agreement for the sale of Nu-Store Tongaat consisted of both written and oral components, and both parties acted on this basis. The respondent breached the agreement by failing to pay the required instalments, and did not remedy the breach after being placed on terms. The applicant was therefore entitled to cancel the agreement. The respondent's reliance on the integration clause was rejected, as it was common cause that the oral agreement formed part of the contract. The respondent's failure to pay, without cancelling the agreement, constituted a breach. The applicant was entitled to restitution, including return of the business against repayment of amounts...

Court Disposition

Application granted; agreement declared validly cancelled; business to be returned to applicant against repayment; costs awarded to applicant; matter referred to authorities.

Orders

  • It is declared that the agreement between the parties relating to the sale of the business known as Nu-Store Tongaat has been validly cancelled.
  • The respondent is ordered to return the said business to the applicant against the return by him of all amounts paid to him in respect of the purchase price of the business. This order is without prejudice to the applicant’s right to claim such further restitution from the respondent as he is able to prove.