Bannister's Print (Pty) Ltd v D&A Calendars CC and Another (27238/18) [2018] ZAGPJHC 469; 2018 (6) SA 77 (GJ) (14 August 2018)

Bannister's Print (Pty) Ltd v D&A Calendars CC and Another (27238/18) [2018] ZAGPJHC 469; 2018 (6) SA 77 (GJ) (14 August 2018)

The court held that the applicant failed to establish the requirements for set-off. The loan debt was owed only by Darryl in his personal capacity, while the taxed costs were owed jointly by both respondents as indivisible co-creditors, defeating reciprocity. The claim for services rendered and materials supplied was disputed, not liquidated, and not capable of prompt and easy proof. The facts did not establish that the alleged liability of the respondents was susceptible to prompt ascertainment or that any amount was due jointly and severally. Consequently, set-off could not operate ipso jure to extinguish the judgment debts, and the applicant was not entitled to a stay of execution. The...

Citation
[2018] ZAGPJHC 469
Parties
Applicant: Bannister's Print (Pty) Ltd; Respondent: D & A Calendars CC; Respondent: Darryl Albert Bannister
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 August 2018
Case Number
27238/18
Procedural Posture
Urgent Application / Application to Stay Writs of Execution Pending Determination of Action
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
P.A. Meyer
Legal Topics
Set Off, Stay of Execution, Judgment Debt, Liquidated Claim, Reciprocity of Debt
Civil Procedure Commercial and Corporate Set Off Stay of Execution Judgment Debt Liquidated Claim Reciprocity of Debt

Case Brief

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Parties

Bannister's Print (Pty) Ltd

Applicant

D & A Calendars CC

Respondent

Darryl Albert Bannister

Respondent

Procedural Posture

Urgent Application / Application to Stay Writs of Execution Pending Determination of Action

Legal Issues

  1. 1 Whether the applicant's liability to pay taxed costs was extinguished by set-off against alleged debts owed by the respondents to the applicant.
  2. 2 Whether the requirements for set-off, including reciprocity and liquidity of debts, were satisfied.
  3. 3 Whether the applicant is entitled to a stay of execution pending determination of the action.

Ratio Decidendi

The court held that the applicant failed to establish the requirements for set-off. The loan debt was owed only by Darryl in his personal capacity, while the taxed costs were owed jointly by both respondents as indivisible co-creditors, defeating reciprocity. The claim for services rendered and materials supplied was disputed, not liquidated, and not capable of prompt and easy proof. The facts did not establish that the alleged liability of the respondents was susceptible to prompt ascertainment or that any amount was due jointly and severally. Consequently, set-off could not operate ipso jure to extinguish the judgment debts, and the applicant was not entitled to a stay of execution. The...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, including those of two counsel.