B Davey v E Davey (191/2019) [2019] ZAECPEHC 44 (2 July 2019)

B Davey v E Davey (191/2019) [2019] ZAECPEHC 44 (2 July 2019)

The court found that the applicant's inability to prepare for trial, resulting from his professional commitments and delays in discovery and provision of trial particulars, was the direct cause of the postponement. The applicant's arguments regarding the reservation of costs and prior contributions to the respondent's costs were rejected. The court held that the general rule applies: the party responsible for the postponement must pay the wasted costs. The respondent's insistence on a substantive application for postponement was not unreasonable, and there were no exceptional circumstances warranting a departure from the usual costs order. The applicant was therefore ordered to pay the...

Citation
[2019] ZAECPEHC 44
Parties
Applicant: Brad David Davey; Respondent: Elizabeth Catharina Davey (born De Swardt)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 July 2019
Case Number
191/2018
Procedural Posture
Civil Application / Costs Determination Following Postponement and Application to Compel
Outcome
The applicant/defendant is ordered to pay the costs of the application to compel and the wasted costs occasioned by the postponement of the trial.
Judges
G.G Goosen
Legal Topics
Postponement of Trial, Costs Award, Discovery and Trial Particulars, Maintenance, Accrual System
Civil Procedure Family and Children Postponement of Trial Costs Award Discovery and Trial Particulars Maintenance Accrual System

Case Brief

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Parties

Brad David Davey

Applicant

Elizabeth Catharina Davey (born De Swardt)

Respondent

Procedural Posture

Civil Application / Costs Determination Following Postponement and Application to Compel

Legal Issues

  1. 1 Should the applicant/defendant pay the costs occasioned by the postponement of the trial?
  2. 2 Is the applicant/defendant liable for the costs of the application to compel trial particulars?
  3. 3 Does the applicant's prior contribution to the respondent's costs affect liability for wasted costs?

Ratio Decidendi

The court found that the applicant's inability to prepare for trial, resulting from his professional commitments and delays in discovery and provision of trial particulars, was the direct cause of the postponement. The applicant's arguments regarding the reservation of costs and prior contributions to the respondent's costs were rejected. The court held that the general rule applies: the party responsible for the postponement must pay the wasted costs. The respondent's insistence on a substantive application for postponement was not unreasonable, and there were no exceptional circumstances warranting a departure from the usual costs order. The applicant was therefore ordered to pay the...

Court Disposition

The applicant/defendant is ordered to pay the costs of the application to compel and the wasted costs occasioned by the postponement of the trial.

Orders

  • The costs of the application to compel shall be paid by the applicant/defendant.
  • The trial set down for 27 May 2019 is postponed sine die.