Burger And Wallace Construction (Pty) Ltd v Ballprop Ten (Pty) Ltd (1153/2005) [2014] ZAWCHC 187 (9 December 2014)

Burger And Wallace Construction (Pty) Ltd v Ballprop Ten (Pty) Ltd (1153/2005) [2014] ZAWCHC 187 (9 December 2014)

The court held that the plaintiff's proposed amendments to its plea in reconvention, insofar as they sought to introduce allegations of initial impossibility and voidness of the joint venture agreement, were impermissible. These issues had already been finally determined in the separated merits trial and confirmed on appeal, and the court was functus officio regarding those matters. The attempt to plead voidness amounted to a withdrawal of implied admissions made during the merits phase and would improperly reopen settled issues. However, the court accepted that quantum-related allegations concerning the feasibility of profit from the joint venture were triable in the second stage,...

Citation
[2014] ZAWCHC 187
Parties
Plaintiff: Burger & Wallace Construction (Pty) Ltd; Defendant: Ballprop Ten (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 December 2014
Case Number
1153/2005
Procedural Posture
Civil Application / Application to Amend Plea in Reconvention After Separation of Issues; Quantum Phase Pending
Outcome
Application to amend plea in reconvention dismissed with costs, including costs of two counsel.
Judges
Binns-Ward
Legal Topics
Contractual Repudiation, Joint Venture Agreement, Separation of Issues, Amendment of Pleadings, Initial Impossibility, Quantum of Damages
Commercial and Corporate Civil Procedure Contractual Repudiation Joint Venture Agreement Separation of Issues Amendment of Pleadings Initial Impossibility Quantum of Damages

Case Brief

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Parties

Burger & Wallace Construction (Pty) Ltd

Plaintiff

Ballprop Ten (Pty) Ltd

Defendant

Procedural Posture

Civil Application / Application to Amend Plea in Reconvention After Separation of Issues; Quantum Phase Pending

Legal Issues

  1. 1 Whether the plaintiff may amend its plea in reconvention to introduce allegations of initial impossibility and voidness of contract after the merits have been finally determined.
  2. 2 Whether the proposed amendments impermissibly seek to reopen issues already decided under a rule 33(4) separation of issues.
  3. 3 Whether aspects of the proposed amendment relating to quantum may be pleaded without implication of contract voidness.

Ratio Decidendi

The court held that the plaintiff's proposed amendments to its plea in reconvention, insofar as they sought to introduce allegations of initial impossibility and voidness of the joint venture agreement, were impermissible. These issues had already been finally determined in the separated merits trial and confirmed on appeal, and the court was functus officio regarding those matters. The attempt to plead voidness amounted to a withdrawal of implied admissions made during the merits phase and would improperly reopen settled issues. However, the court accepted that quantum-related allegations concerning the feasibility of profit from the joint venture were triable in the second stage,...

Court Disposition

Application to amend plea in reconvention dismissed with costs, including costs of two counsel.

Orders

  • The application to amend the plea in reconvention is dismissed.
  • Plaintiff to pay the costs of the application, including the fees of two counsel.