Chicory SA Ltd v Neary (451/2011) [2011] ZAECGHC 66 (14 November 2011)

Chicory SA Ltd v Neary (451/2011) [2011] ZAECGHC 66 (14 November 2011)

The court held that paragraph 2 of the defendant's plea, when interpreted in the context of the particulars of claim, does disclose a defence. The particulars of claim did not allege a binding contract but rather a void memorandum of understanding. The defendant's plea, although poorly worded, implicitly accepted the voidness of the memorandum and alleged the existence of a separate contract in his personal capacity. The plea, read with subsequent paragraphs, constituted a defence that payment was made with cause under a contractual obligation. The exception was further dismissed because it was not directed at a self-contained part of the plea, as required by law. Accordingly, the...

Citation
[2011] ZAECGHC 66
Parties
Plaintiff: Chicory SA Limited; Defendant: Brian Neary
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 November 2011
Case Number
451/2011
Procedural Posture
Civil Procedure / Exception to Plea
Outcome
Exception dismissed with costs.
Judges
J M Roberson
Legal Topics
Exception to Plea, Parole Evidence Rule, Contractual Obligation, Memorandum of Understanding
Civil Procedure Commercial and Corporate Exception to Plea Parole Evidence Rule Contractual Obligation Memorandum of Understanding

Case Brief

Summary, issues, holding and outcome

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Parties

Chicory SA Limited

Plaintiff

Brian Neary

Defendant

Procedural Posture

Civil Procedure / Exception to Plea

Legal Issues

  1. 1 Whether paragraph 2 of the defendant's plea discloses a defence to the plaintiff's claim.
  2. 2 Whether the defendant's plea offends the parole evidence rule by alleging oral or implied terms contrary to the written memorandum of understanding.
  3. 3 Whether the exception can be upheld when the plea is not self-contained and is linked to other paragraphs.

Ratio Decidendi

The court held that paragraph 2 of the defendant's plea, when interpreted in the context of the particulars of claim, does disclose a defence. The particulars of claim did not allege a binding contract but rather a void memorandum of understanding. The defendant's plea, although poorly worded, implicitly accepted the voidness of the memorandum and alleged the existence of a separate contract in his personal capacity. The plea, read with subsequent paragraphs, constituted a defence that payment was made with cause under a contractual obligation. The exception was further dismissed because it was not directed at a self-contained part of the plea, as required by law. Accordingly, the...

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.