Binder v Nedbank Ltd (2011/1010483) [2013] ZAGPJHC 60 (3 April 2013)

Binder v Nedbank Ltd (2011/1010483) [2013] ZAGPJHC 60 (3 April 2013)

The court found that the plaintiff's particulars of claim did not disclose a cause of action because they failed to plead which remedy under clause 19 of the contract was elected following breach, did not aver compliance with the requirement to appoint an appraiser to determine the market value of the repossessed goods, and omitted necessary details regarding the dates of cancellation and repossession. The absence of these averments meant that the plaintiff had not established the factual basis for its claim as required by the Uniform Rules of Court. The court held that the plaintiff must plead all material contractual provisions and compliance therewith to sustain its claim. Accordingly,...

Citation
[2013] ZAGPJHC 60
Parties
Applicant: Binder Joseph Frederick Karl; Respondent: Nedbank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 April 2013
Case Number
2011/1010483
Procedural Posture
Interlocutory Application / Application to Strike Out Particulars of Claim for Failure to Disclose Cause of Action
Outcome
Plaintiff's particulars of claim struck out for failure to disclose a cause of action; leave granted to amend within 14 days; costs awarded against plaintiff.
Judges
Molahlehi
Legal Topics
Pleading Requirements, Cause of Action, Contractual Election, Repossession of Goods, Liquidated Damages
Civil Procedure Commercial and Corporate Pleading Requirements Cause of Action Contractual Election Repossession of Goods Liquidated Damages

Case Brief

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Parties

Binder Joseph Frederick Karl

Applicant

Nedbank Limited

Respondent

Procedural Posture

Interlocutory Application / Application to Strike Out Particulars of Claim for Failure to Disclose Cause of Action

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action under the contract.
  2. 2 Whether the plaintiff properly pleaded its election between remedies under clause 19 of the contract.
  3. 3 Whether the plaintiff complied with the contractual requirement for appointment of an appraiser to determine market value of repossessed goods.

Ratio Decidendi

The court found that the plaintiff's particulars of claim did not disclose a cause of action because they failed to plead which remedy under clause 19 of the contract was elected following breach, did not aver compliance with the requirement to appoint an appraiser to determine the market value of the repossessed goods, and omitted necessary details regarding the dates of cancellation and repossession. The absence of these averments meant that the plaintiff had not established the factual basis for its claim as required by the Uniform Rules of Court. The court held that the plaintiff must plead all material contractual provisions and compliance therewith to sustain its claim. Accordingly,...

Court Disposition

Plaintiff's particulars of claim struck out for failure to disclose a cause of action; leave granted to amend within 14 days; costs awarded against plaintiff.

Orders

  • The plaintiff's particulars of claim do not disclose the cause of action.
  • The plaintiff is granted leave to amend its particulars of claim within 14 days of date of this order.