Cohen v McFarlane (2014/42393) [2015] ZAGPJHC 140 (12 June 2015)

Cohen v McFarlane (2014/42393) [2015] ZAGPJHC 140 (12 June 2015)

The court found that the settlement agreement was clear in its terms, providing for the applicant to receive one third of the net proceeds from the sale of the property after deduction of the bond and estate agent's commission. The respondent's attempt to import a tacit term allowing deduction for improvements was unsupported by the evidence and not contemplated by the parties at the time of the agreement. The respondent's alleged counterclaims were not formally brought before the court and related mainly to maintenance payments that had prescribed. The respondent had full enjoyment and control of the property and was aware of the terms of the order. The court concluded that the applicant...

Citation
[2015] ZAGPJHC 140
Parties
Applicant: Michael Mervyn Cohen; Respondent: Claudia McFarlane (formerly Cohen)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 June 2015
Case Number
2014/42393
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted in favour of the applicant.
Judges
R Hertenberger
Legal Topics
Divorce Settlement Enforcement, Contractual Interpretation, Implied Terms, Maintenance Claims
Family and Children Civil Procedure Divorce Settlement Enforcement Contractual Interpretation Implied Terms Maintenance Claims

Case Brief

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Parties

Michael Mervyn Cohen

Applicant

Claudia McFarlane (formerly Cohen)

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to one third of the net proceeds from the sale of the property as per the divorce settlement agreement.
  2. 2 Whether a tacit term should be incorporated into the agreement to deduct the value of improvements made by the respondent from the proceeds.
  3. 3 Whether the respondent's alleged counterclaims and set-offs are valid and should affect the applicant's entitlement.

Ratio Decidendi

The court found that the settlement agreement was clear in its terms, providing for the applicant to receive one third of the net proceeds from the sale of the property after deduction of the bond and estate agent's commission. The respondent's attempt to import a tacit term allowing deduction for improvements was unsupported by the evidence and not contemplated by the parties at the time of the agreement. The respondent's alleged counterclaims were not formally brought before the court and related mainly to maintenance payments that had prescribed. The respondent had full enjoyment and control of the property and was aware of the terms of the order. The court concluded that the applicant...

Court Disposition

Application granted in favour of the applicant.

Orders

  • The respondent shall pay an amount of R816,666.00 to the applicant.
  • Interest on the above amount shall be payable at a rate of 9% per annum from 30 September 2014 to date of final payment.