Brett N.O and Others v Kushner (CA 61/2019) [2020] ZAECGHC 86 (13 August 2020)

Brett N.O and Others v Kushner (CA 61/2019) [2020] ZAECGHC 86 (13 August 2020)

The court held that the claims for arrear rental and damages did not arise from a singular cause of action. The first action was for arrear rental accrued prior to the termination of occupation, while the second action was for damages resulting from the inability to re-let the premises after cancellation of the lease. The lease did not afford only a singular cause of action, and the claims were based on different grounds. The mere presence of common elements in the allegations did not justify the application of the 'once and for all' rule. The trial court erred in finding that the appellants were non-suited by the rule, as the claims were clearly distinct. The appeal was upheld, and the...

Citation
[2020] ZAECGHC 86
Parties
Appellant: Alec Brett N.O.; Appellant: Wayne Brett N.O.; Appellant: Gavin Brett N.O.; Appellant: Rynette Brett N.O.; Respondent: Clifford Stanley Kushner
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
13 August 2020
Case Number
CA 61/2019
Procedural Posture
Civil Appeal / Appeal From Regional Court Decision on Special Plea
Outcome
Appeal upheld; order of the Magistrate set aside.
Judges
O H Ronaasen, E Revelas
Legal Topics
Once and for All Rule, Breach of Contract, Damages, Lease Agreement, Res Judicata
Civil Procedure Commercial and Corporate Once and for All Rule Breach of Contract Damages Lease Agreement Res Judicata

Case Brief

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Parties

Alec Brett N.O.

Appellant

Wayne Brett N.O.

Appellant

Gavin Brett N.O.

Appellant

Rynette Brett N.O.

Appellant

Clifford Stanley Kushner

Respondent

Procedural Posture

Civil Appeal / Appeal From Regional Court Decision on Special Plea

Legal Issues

  1. 1 Does the 'once and for all' rule preclude the appellants from claiming damages for breach of contract in a second action after having claimed arrear rental in a first action?
  2. 2 Are the claims for arrear rental and damages based on the same cause of action or distinct causes of action?
  3. 3 Did the trial court err in applying the 'once and for all' rule to dismiss the appellants' claim for damages?

Ratio Decidendi

The court held that the claims for arrear rental and damages did not arise from a singular cause of action. The first action was for arrear rental accrued prior to the termination of occupation, while the second action was for damages resulting from the inability to re-let the premises after cancellation of the lease. The lease did not afford only a singular cause of action, and the claims were based on different grounds. The mere presence of common elements in the allegations did not justify the application of the 'once and for all' rule. The trial court erred in finding that the appellants were non-suited by the rule, as the claims were clearly distinct. The appeal was upheld, and the...

Court Disposition

Appeal upheld; order of the Magistrate set aside.

Orders

  • The defendant's special plea based on the 'once and for all' rule is dismissed.
  • The defendant is directed to pay the plaintiffs' costs on the scale as between party and party, as taxed or agreed, including counsel's costs not exceeding double the tariff amounts.