Classic Number Trading 171 (Pty) Limited v Pick n Pay Retailers (Pty) Ltd (1580/2018) [2018] ZAGPJHC 596 (24 August 2018)

Classic Number Trading 171 (Pty) Limited v Pick n Pay Retailers (Pty) Ltd (1580/2018) [2018] ZAGPJHC 596 (24 August 2018)

The court found that the applicant's proposed amendments to the particulars of claim did not cure the defects identified by the respondent. The main and first alternative claims remained excipiable, as they failed to distinguish themselves and lacked necessary averments to sustain a cause of action. The allegations that the defendant breached the agreement by failing to reach agreement on the purchase price or terms were contradicted by the contract, which provided for auditor determination in the absence of agreement. The alternative claims were not properly pleaded in the alternative and were indistinguishable from the main claim. The second alternative claim was withdrawn by the...

Citation
[2018] ZAGPJHC 596
Parties
Applicant: Classic Number Trading 171 (Pty) Limited; Respondent: Pick n Pay Retailers (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 August 2018
Case Number
1580/2018
Procedural Posture
Civil Application / Application to Amend Particulars of Claim
Outcome
Application to amend particulars of claim substantially refused; only unopposed amendments granted; costs awarded against applicant.
Judges
Bester
Legal Topics
Franchise Agreement, Breach of Contract, Amendment of Pleadings, Damages, Specific Performance
Commercial and Corporate Civil Procedure Franchise Agreement Breach of Contract Amendment of Pleadings Damages Specific Performance

Case Brief

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Parties

Classic Number Trading 171 (Pty) Limited

Applicant

Pick n Pay Retailers (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the proposed amendments to the particulars of claim cure the defects identified by the respondent.
  2. 2 Whether the amended particulars of claim sustain a cause of action or remain excipiable for vagueness and embarrassment.
  3. 3 Whether the plaintiff's claims are properly distinguished and pleaded in the alternative.

Ratio Decidendi

The court found that the applicant's proposed amendments to the particulars of claim did not cure the defects identified by the respondent. The main and first alternative claims remained excipiable, as they failed to distinguish themselves and lacked necessary averments to sustain a cause of action. The allegations that the defendant breached the agreement by failing to reach agreement on the purchase price or terms were contradicted by the contract, which provided for auditor determination in the absence of agreement. The alternative claims were not properly pleaded in the alternative and were indistinguishable from the main claim. The second alternative claim was withdrawn by the...

Court Disposition

Application to amend particulars of claim substantially refused; only unopposed amendments granted; costs awarded against applicant.

Orders

  • The plaintiff's particulars of claim are amended by deleting the words 'spoliation and' from the heading between paragraphs 25 and 26, and by replacing current annexure POC3 with the document marked POC3 to the notice of intention to amend.
  • The applicant shall pay the costs of the application.