Azulene Investments CC v Aude Tap (Pty) Ltd (14251/2008) [2010] ZAKZDHC 66 (26 November 2010)

Azulene Investments CC v Aude Tap (Pty) Ltd (14251/2008) [2010] ZAKZDHC 66 (26 November 2010)

The court found that the alleged oral lease agreement was concluded during the currency of a written lease agreement containing a non-variation clause, which required any variation or cancellation to be in writing and signed by both parties. As the alleged oral agreement was not reduced to writing or signed, it was of no force and effect. The validity of the amendment depended on the existence of a valid fourth lease agreement, which the court found did not exist. Furthermore, the court was not convinced by the applicant's explanation for the omission of the material term and found the timing and circumstances of the application questionable. The court concluded that the application was...

Citation
[2010] ZAKZDHC 66
Parties
Applicant: Azulene Investments CC; Respondent: Aude Tap (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
26 November 2010
Case Number
14251/2008
Procedural Posture
Urgent Application / Application for Amendment of Particulars of Claim Prior to Trial
Outcome
Application to amend particulars of claim dismissed with costs.
Judges
Cele AJ
Legal Topics
Amendment of Pleadings, Lease Agreement, Non Variation Clause, Oral Agreement, Abuse of Process
Civil Procedure Land and Property Amendment of Pleadings Lease Agreement Non Variation Clause Oral Agreement Abuse of Process

Case Brief

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Parties

Azulene Investments CC

Applicant

Aude Tap (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Amendment of Particulars of Claim Prior to Trial

Legal Issues

  1. 1 Whether the applicant is entitled to amend its particulars of claim to include terms of an alleged oral lease agreement.
  2. 2 Whether the alleged oral lease agreement is valid in light of the non-variation clause in the preceding written lease agreement.
  3. 3 Whether the application to amend constitutes an abuse of process.

Ratio Decidendi

The court found that the alleged oral lease agreement was concluded during the currency of a written lease agreement containing a non-variation clause, which required any variation or cancellation to be in writing and signed by both parties. As the alleged oral agreement was not reduced to writing or signed, it was of no force and effect. The validity of the amendment depended on the existence of a valid fourth lease agreement, which the court found did not exist. Furthermore, the court was not convinced by the applicant's explanation for the omission of the material term and found the timing and circumstances of the application questionable. The court concluded that the application was...

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 this application.