Burnett v Deloitte & Touch and Another (4254/2008) [2010] ZAWCHC 84; 2010 (5) SA 259 (WCC) (20 April 2010)

Burnett v Deloitte & Touch and Another (4254/2008) [2010] ZAWCHC 84; 2010 (5) SA 259 (WCC) (20 April 2010)

Prescription in respect of the plaintiff's damages claim did not commence until the first valuation or arbitration award was set aside on 26 February 2007. The binding nature of the arbitral award meant that the plaintiff could not have instituted a damages claim until the award was set aside. The cause of action required not only knowledge of the breach but also the setting aside of the valuation, as the award remained enforceable until then. The special plea of prescription fails because the present action was instituted within three years of the setting aside of the first valuation.

Citation
[2010] ZAWCHC 84
Parties
Plaintiff: Russel Eric Burnett; Defendant: Deloitte & Touche; Defendant: Robyn Campbell
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 April 2010
Case Number
4254/2008
Procedural Posture
Civil Trial / Special Plea of Prescription Determined Prior to Remaining Issues
Outcome
Special plea of prescription dismissed with costs.
Judges
Bozalek
Legal Topics
Extinctive Prescription, Breach of Contract, Arbitration Award, Malperformance, Valuation Dispute
Civil Procedure Commercial and Corporate Extinctive Prescription Breach of Contract Arbitration Award Malperformance Valuation Dispute

Case Brief

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Parties

Russel Eric Burnett

Plaintiff

Deloitte & Touche

Defendant

Robyn Campbell

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Determined Prior to Remaining Issues

Legal Issues

  1. 1 When does prescription commence to run in respect of a damages claim arising from malperformance of contractual obligations in an arbitral context.
  2. 2 Whether the plaintiff's claim against the defendants had prescribed by the time summons was served.

Ratio Decidendi

Prescription in respect of the plaintiff's damages claim did not commence until the first valuation or arbitration award was set aside on 26 February 2007. The binding nature of the arbitral award meant that the plaintiff could not have instituted a damages claim until the award was set aside. The cause of action required not only knowledge of the breach but also the setting aside of the valuation, as the award remained enforceable until then. The special plea of prescription fails because the present action was instituted within three years of the setting aside of the first valuation.

Court Disposition

Special plea of prescription dismissed with costs.

Orders

  • The special plea of prescription is dismissed with costs.
  • Such costs to include the costs of two counsel where so employed.