Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018)

Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018)

The court found that the applicants had established a prima facie right to restitution of the part-purchase price following cancellation of the sale agreement, regardless of whether the cancellation was based on misrepresentation or repudiation. The respondents' resistance to repayment was found to be unmeritorious, and their conduct in clearing out the bank account and providing a dishonest explanation for the use of funds supported the inference that they were seeking to frustrate satisfaction of a future judgment. The court held that the applicants' suspicions of dissipation were justified and that an interim interdict restraining the respondents from disposing of or encumbering...

Citation
[2018] ZAGPJHC 2
Parties
Applicant: Ann Clarissa Carsten; Applicant: Maletsatsi Tsholofelo Wesi; Respondent: John Peter Gerald Kullmann; Respondent: Conrad Kullmann; Respondent: The Standard Bank of South Africa Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 January 2018
Case Number
49174/2017
Procedural Posture
Urgent Application / Interim Interdict Pending Action
Outcome
Interim interdict granted restraining the first and second respondents from disposing of or encumbering specified immovable properties pending determination of the action for repayment of the part-purchase price. Costs awarded as specified.
Judges
WHG van der Linde
Legal Topics
Anti Dissipation Interdict, Breach of Contract, Misrepresentation, Restitution, Interim Relief
Civil Procedure Commercial and Corporate Anti Dissipation Interdict Breach of Contract Misrepresentation Restitution Interim Relief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Ann Clarissa Carsten

Applicant

Maletsatsi Tsholofelo Wesi

Applicant

John Peter Gerald Kullmann

Respondent

Conrad Kullmann

Respondent

The Standard Bank of South Africa Limited

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Action

Legal Issues

  1. 1 Whether the applicants are entitled to an interim anti-dissipation interdict restraining the respondents from disposing of or encumbering their immovable property pending an action for repayment of the part-purchase price.
  2. 2 Whether the applicants have established a prima facie right to restitution of the part-purchase price following cancellation of the sale agreement.
  3. 3 Whether the respondents' conduct amounts to dissipation or secretion of assets to frustrate a future judgment.

Ratio Decidendi

The court found that the applicants had established a prima facie right to restitution of the part-purchase price following cancellation of the sale agreement, regardless of whether the cancellation was based on misrepresentation or repudiation. The respondents' resistance to repayment was found to be unmeritorious, and their conduct in clearing out the bank account and providing a dishonest explanation for the use of funds supported the inference that they were seeking to frustrate satisfaction of a future judgment. The court held that the applicants' suspicions of dissipation were justified and that an interim interdict restraining the respondents from disposing of or encumbering...

Court Disposition

Interim interdict granted restraining the first and second respondents from disposing of or encumbering specified immovable properties pending determination of the action for repayment of the part-purchase price. Costs awarded as specified.

Orders

  • Pending determination of an action to be instituted within thirty days by the applicants against the first and second respondents for repayment of the part-purchase price of R2.2 million plus interest, the following interim interdict issues: (a) The first respondent is restrained from disposing of or encumbering 25a...
  • The first and second respondents are directed to pay the costs of this application, including all reserved costs, jointly and severally, except as provided below.