Bernabei v Bernabei; In re: Sheriff Johannesburg East v Kumalo (23325/2010) [2016] ZAGPPHC 755 (24 August 2016)

Bernabei v Bernabei; In re: Sheriff Johannesburg East v Kumalo (23325/2010) [2016] ZAGPPHC 755 (24 August 2016)

The court found that the respondent, having defaulted on her obligations under the sale in execution, does not oppose cancellation of the sale and seeks only a refund of her deposit. The sale in execution is cancelled. The deposit paid by the respondent is to be held in trust by the sheriff and dealt with as directed by the court. The applicant is ordered to quantify all costs and losses incurred due to the respondent's default, including preparation, scheduling, sheriff's commission, and any other losses. The process for quantification and opposition is set out, and the matter is referred to open court for final adjudication. The court emphasizes the need for expeditious resolution given...

Citation
[2016] ZAGPPHC 755
Parties
Plaintiff: Marco Bernabei; Defendant: Emma Bernabei; Applicant: Sheriff Johannesburg East; Respondent: Kumalo Gladness
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 August 2016
Case Number
23325/2010
Procedural Posture
Urgent Application / Application for Cancellation of Sale in Execution Under Rule 46(11)
Outcome
The sale in execution is cancelled. The respondent's deposit is to be held in trust pending quantification of costs and losses. The matter is referred to open court for final adjudication.
Judges
S P Mothle
Legal Topics
Sale in Execution, Cancellation of Sale, Refund of Deposit, Quantification of Costs
Civil Procedure Land and Property Sale in Execution Cancellation of Sale Refund of Deposit Quantification of Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Marco Bernabei

Plaintiff

Emma Bernabei

Defendant

Sheriff Johannesburg East

Applicant

Kumalo Gladness

Respondent

Procedural Posture

Urgent Application / Application for Cancellation of Sale in Execution Under Rule 46(11)

Legal Issues

  1. 1 Whether the sale in execution of the immovable property should be cancelled under Rule 46(11).
  2. 2 Whether the respondent is entitled to a refund of her deposit after defaulting on the sale agreement.
  3. 3 How the costs and losses arising from the collapsed sale should be quantified and allocated.

Ratio Decidendi

The court found that the respondent, having defaulted on her obligations under the sale in execution, does not oppose cancellation of the sale and seeks only a refund of her deposit. The sale in execution is cancelled. The deposit paid by the respondent is to be held in trust by the sheriff and dealt with as directed by the court. The applicant is ordered to quantify all costs and losses incurred due to the respondent's default, including preparation, scheduling, sheriff's commission, and any other losses. The process for quantification and opposition is set out, and the matter is referred to open court for final adjudication. The court emphasizes the need for expeditious resolution given...

Court Disposition

The sale in execution is cancelled. The respondent's deposit is to be held in trust pending quantification of costs and losses. The matter is referred to open court for final adjudication.

Orders

  • The sale in execution which took place on 30 April 2015 is cancelled.
  • The deposit paid by the respondent shall be held in trust by the sheriff and dealt with as directed by the court.