Brown v D'Elboux (40381/2015) [2017] ZAGPJHC 164 (5 April 2017)

Brown v D'Elboux (40381/2015) [2017] ZAGPJHC 164 (5 April 2017)

The court found that the respondent failed to comply with the settlement agreement by not obtaining final bond approval and not effecting transfer of the applicant's undivided half share in the Cowley property within the stipulated period. The purported bond approval was not final and did not satisfy the contractual requirements. The respondent's opposition to rectification was unreasonable, and the agreement should be rectified to reflect sale at market value. Due to the parties' inability to cooperate, a professional liquidator should be appointed to sell the property and divide the proceeds. The respondent is liable for all outstanding municipal charges and must ensure compliance with...

Citation
[2017] ZAGPJHC 164
Parties
Applicant: Michelle Ann Brown; Respondent: Wayne Steven D'Elboux
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 April 2017
Case Number
40381/2015
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted in part; settlement agreement rectified; liquidator appointed; respondent's counter application dismissed; no order as to costs.
Judges
Ncongwane
Legal Topics
Rectification of Settlement Agreement, Division of Matrimonial Property, Appointment of Liquidator, Contempt of Court, Municipal Compliance, Transfer of Immovable Property
Family and Children Land and Property Civil Procedure Rectification of Settlement Agreement Division of Matrimonial Property Appointment of Liquidator Contempt of Court Municipal Compliance +1 more

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Parties

Michelle Ann Brown

Applicant

Wayne Steven D'Elboux

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to rectification of the settlement agreement regarding the sale value of the property.
  2. 2 Whether the respondent complied with the condition to obtain bond approval within three months and is entitled to enforce the agreement.
  3. 3 Whether the respondent should be held in contempt of court for non-compliance with the settlement agreement.

Ratio Decidendi

The court found that the respondent failed to comply with the settlement agreement by not obtaining final bond approval and not effecting transfer of the applicant's undivided half share in the Cowley property within the stipulated period. The purported bond approval was not final and did not satisfy the contractual requirements. The respondent's opposition to rectification was unreasonable, and the agreement should be rectified to reflect sale at market value. Due to the parties' inability to cooperate, a professional liquidator should be appointed to sell the property and divide the proceeds. The respondent is liable for all outstanding municipal charges and must ensure compliance with...

Court Disposition

Application granted in part; settlement agreement rectified; liquidator appointed; respondent's counter application dismissed; no order as to costs.

Orders

  • The settlement agreement is rectified to replace 'at a value R1 200 000.00' in Clause 8.9.1 with 'at market value'.
  • A professional liquidator nominated by the applicant is appointed; costs of the liquidator to be paid from the sale proceeds of the Cowley property.