Bidvest Bank Limited v Jacobs Capital (Pty) Limited (11890/2015) [2018] ZAKZDHC 34 (29 June 2018)

Bidvest Bank Limited v Jacobs Capital (Pty) Limited (11890/2015) [2018] ZAKZDHC 34 (29 June 2018)

The court found that the plaintiff acted reasonably in withdrawing the provisional sentence summons after expert advice revealed deficiencies in the documents relied upon. There was no evidence that the plaintiff knew in advance that the bills of exchange were invalid, nor that the proceedings were frivolous or vexatious. The defendant's claim for attorney and client costs was unsupported by sufficient evidence, particularly regarding the necessity and reasonableness of the expenses incurred. The normal party and party scale was appropriate for the provisional sentence proceedings. The defendant's refusal to consent to withdrawal was baseless and did not warrant a punitive costs order....

Citation
[2018] ZAKZDHC 34
Parties
Plaintiff: Bidvest Bank Limited; Defendant: Jacobs Capital (Pty) Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
29 June 2018
Case Number
11890/2015
Procedural Posture
Civil Procedure / Application for Leave to Withdraw Provisional Sentence Summons and Determination of Costs Scale
Outcome
Leave to withdraw the provisional sentence summons granted; costs awarded on the party and party scale for the provisional sentence proceedings; costs of the application awarded to the plaintiff, including costs of two counsel.
Judges
Gorven
Legal Topics
Withdrawal of Proceedings, Costs Award, Attorney and Client Scale, Party and Party Scale, Bills of Exchange, Rule 41 Application
Civil Procedure Withdrawal of Proceedings Costs Award Attorney and Client Scale Party and Party Scale Bills of Exchange Rule 41 Application

Case Brief

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Parties

Bidvest Bank Limited

Plaintiff

Jacobs Capital (Pty) Limited

Defendant

Procedural Posture

Civil Procedure / Application for Leave to Withdraw Provisional Sentence Summons and Determination of Costs Scale

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to withdraw the provisional sentence summons.
  2. 2 On what scale the costs of the provisional sentence proceedings should be awarded.
  3. 3 Whether the defendant's conduct warrants a punitive costs order on the attorney and client scale.

Ratio Decidendi

The court found that the plaintiff acted reasonably in withdrawing the provisional sentence summons after expert advice revealed deficiencies in the documents relied upon. There was no evidence that the plaintiff knew in advance that the bills of exchange were invalid, nor that the proceedings were frivolous or vexatious. The defendant's claim for attorney and client costs was unsupported by sufficient evidence, particularly regarding the necessity and reasonableness of the expenses incurred. The normal party and party scale was appropriate for the provisional sentence proceedings. The defendant's refusal to consent to withdrawal was baseless and did not warrant a punitive costs order....

Court Disposition

Leave to withdraw the provisional sentence summons granted; costs awarded on the party and party scale for the provisional sentence proceedings; costs of the application awarded to the plaintiff, including costs of two counsel.

Orders

  • The plaintiff is given leave to withdraw the provisional sentence summons.
  • The plaintiff is directed to pay the wasted costs occasioned in the provisional sentence proceedings.