Bowie v Body Corporate of Cape Royale (4943/2011) [2011] ZAWCHC 73 (15 March 2011)

Bowie v Body Corporate of Cape Royale (4943/2011) [2011] ZAWCHC 73 (15 March 2011)

The court found that the respondent's explanation for delaying the clearance certificate was unconvincing. The managing agents did not mention any special levy when payment was requested and received. The resolution to impose a special levy was passed only after service of the application papers, suggesting it was prompted by the litigation rather than genuine necessity. The chairman's report indicated that any special levy would be discussed at the AGM, and there was no evidence that the AGM date had been set when the application was served. The court held that the clearance certificate should have been issued immediately after payment of the amounts specified by the agents. Any concern...

Citation
[2011] ZAWCHC 73
Parties
Applicant: James Stephen Bowie; Respondent: Body Corporate of Cape Royale
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 March 2011
Case Number
4943/2011
Procedural Posture
Urgent Application / Costs Determination After Urgent Application for Clearance Certificate
Outcome
Application for costs granted in favour of the applicant.
Judges
R B Cleaver
Legal Topics
Sectional Title Clearance Certificate, Special Levy, Costs Award, Sectional Titles Act, Trustee Resolution
Land and Property Civil Procedure Sectional Title Clearance Certificate Special Levy Costs Award Sectional Titles Act Trustee Resolution

Case Brief

Summary, issues, holding and outcome

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Parties

James Stephen Bowie

Applicant

Body Corporate of Cape Royale

Respondent

Procedural Posture

Urgent Application / Costs Determination After Urgent Application for Clearance Certificate

Legal Issues

  1. 1 Whether the respondent was entitled to delay issuing the clearance certificate pending a special levy resolution.
  2. 2 Whether the applicant is entitled to costs after the clearance certificate was issued post-application.

Ratio Decidendi

The court found that the respondent's explanation for delaying the clearance certificate was unconvincing. The managing agents did not mention any special levy when payment was requested and received. The resolution to impose a special levy was passed only after service of the application papers, suggesting it was prompted by the litigation rather than genuine necessity. The chairman's report indicated that any special levy would be discussed at the AGM, and there was no evidence that the AGM date had been set when the application was served. The court held that the clearance certificate should have been issued immediately after payment of the amounts specified by the agents. Any concern...

Court Disposition

Application for costs granted in favour of the applicant.

Orders

  • The respondent is ordered to pay the applicant's costs.