Chipkin and Others v Mayborn Investments 24 (Pty) Ltd and Others (2013/10592) [2013] ZAGPJHC 393 (6 December 2013)

Chipkin and Others v Mayborn Investments 24 (Pty) Ltd and Others (2013/10592) [2013] ZAGPJHC 393 (6 December 2013)

The court found that the payment made by the Trust to Investec was intended as the purchase price for the assignment of Investec's rights under the loan agreement and suretyships, not as settlement of the principal debt. The sale agreement had retrospective effect to the date of payment, and the Trust acquired all rights to enforce the debt and surety obligations. There was no merger of debtor and creditor, as the Trust did not become Investec's debtor. The joinder of Marc Chipkin was irregular, as the respondents' claim against him was for damages, not indemnification as required by Rule 13(1)(a). Accordingly, the respondents remained liable for the amounts claimed under the loan...

Citation
[2013] ZAGPJHC 393
Parties
Applicant: Bernard Robert Chipkin (in his capacity as trustee of the Bernard Chipkin Family Trust); Applicant: Philip David Berman (in his capacity as trustee of the Bernard Chipkin Family Trust); Applicant: Joseph Leon Pamensky (in his capacity as trustee of the Bernard Chipkin Family Trust); Respondent: Mayborn Investments 24 (Pty) Ltd; Respondent: Bradley Trent Jones; Respondent: Peter Frank Adelson
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 December 2013
Case Number
2013/10592
Procedural Posture
Civil Application / Judgment
Outcome
Judgment granted in favour of the applicants; respondents held jointly and severally liable for the claimed amounts; third party notice set aside; costs awarded on attorney and own client scale.
Judges
Boruchowitz
Legal Topics
Suretyship, Assignment of Claims, Joinder of Parties, Parol Evidence Rule, Merger and Confusio
Commercial and Corporate Civil Procedure Suretyship Assignment of Claims Joinder of Parties Parol Evidence Rule Merger and Confusio

Case Brief

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Parties

Bernard Robert Chipkin (in his capacity as trustee of the Bernard Chipkin Family Trust)

Applicant

Philip David Berman (in his capacity as trustee of the Bernard Chipkin Family Trust)

Applicant

Joseph Leon Pamensky (in his capacity as trustee of the Bernard Chipkin Family Trust)

Applicant

Mayborn Investments 24 (Pty) Ltd

Respondent

Bradley Trent Jones

Respondent

Peter Frank Adelson

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the payment by the Trust to Investec prior to execution of the sale agreement discharged the principal debt and the sureties.
  2. 2 Whether the acquisition of Investec's claim by the Trust resulted in a merger of debtor and creditor, extinguishing the debt and surety obligations.
  3. 3 Whether the joinder of Marc Chipkin as a third party was valid under Rule 13.

Ratio Decidendi

The court found that the payment made by the Trust to Investec was intended as the purchase price for the assignment of Investec's rights under the loan agreement and suretyships, not as settlement of the principal debt. The sale agreement had retrospective effect to the date of payment, and the Trust acquired all rights to enforce the debt and surety obligations. There was no merger of debtor and creditor, as the Trust did not become Investec's debtor. The joinder of Marc Chipkin was irregular, as the respondents' claim against him was for damages, not indemnification as required by Rule 13(1)(a). Accordingly, the respondents remained liable for the amounts claimed under the loan...

Court Disposition

Judgment granted in favour of the applicants; respondents held jointly and severally liable for the claimed amounts; third party notice set aside; costs awarded on attorney and own client scale.

Orders

  • Judgment is granted against the respondents, jointly and severally, the one paying, the other to be absolved.
  • The first respondent is directed to pay the amount of R5 152 596.15 to the applicants.