Birch t/a Birch and Son v Mosstrich (Pty) Ltd (4516/2016) [2017] ZAECGHC 32 (14 March 2017)

Birch t/a Birch and Son v Mosstrich (Pty) Ltd (4516/2016) [2017] ZAECGHC 32 (14 March 2017)

The court found that the applicant failed to comply with the peremptory requirements of clause 17 of the contract, specifically the obligation to give notice to the respondent before seeking the appointment of an Expert. The letter sent by the applicant did not constitute proper notice, and the subsequent appointment of Mr. Verwey by the Chairperson of the South African Institute of Chartered Accountants was invalid. The dispute between the parties was not clearly an accounting matter, and the procedure for appointing an Expert in such circumstances was not followed. As a result, the Expert Determination by Mr. Verwey was of no legal consequence and could not form the basis for any...

Citation
[2017] ZAECGHC 32
Parties
Applicant: Sidney Bonnen Birch t/a LF Birch & Son; Respondent: Mosstrich (Pty) Ltd
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 March 2017
Case Number
4516/2016
Procedural Posture
Civil Application / Counter Application and Main Application
Outcome
Main application dismissed; counter-application granted; costs awarded against applicant.
Judges
J.D. Pickering
Legal Topics
Expert Determination, Contractual Dispute Resolution, Specific Performance, Reciprocal Obligations, Appointment of Expert
Commercial and Corporate Civil Procedure Expert Determination Contractual Dispute Resolution Specific Performance Reciprocal Obligations Appointment of Expert

Case Brief

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Parties

Sidney Bonnen Birch t/a LF Birch & Son

Applicant

Mosstrich (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Counter Application and Main Application

Legal Issues

  1. 1 Whether the appointment of Mr. Jason Verwey as Expert was valid under clause 17 of the contract.
  2. 2 Whether the Expert Determination by Mr. Verwey has legal consequences binding the parties.
  3. 3 Whether the applicant complied with the contractual procedure for dispute resolution.

Ratio Decidendi

The court found that the applicant failed to comply with the peremptory requirements of clause 17 of the contract, specifically the obligation to give notice to the respondent before seeking the appointment of an Expert. The letter sent by the applicant did not constitute proper notice, and the subsequent appointment of Mr. Verwey by the Chairperson of the South African Institute of Chartered Accountants was invalid. The dispute between the parties was not clearly an accounting matter, and the procedure for appointing an Expert in such circumstances was not followed. As a result, the Expert Determination by Mr. Verwey was of no legal consequence and could not form the basis for any...

Court Disposition

Main application dismissed; counter-application granted; costs awarded against applicant.

Orders

  • It is declared that the appointment of Mr. Jason Verwey of Moore Stephens WK Inc., Port Elizabeth, by the Chairperson of the South African Institute of Chartered Accountants, Port Elizabeth District Association, does not constitute a valid appointment in terms of clause 17 of the contract concluded between the parties.
  • It is declared that the proceedings in front of Mr. Jason Verwey and his Expert Determination dated 10 August 2016 have no legal consequences.