Cook v Seabush Investments (Pty) Ltd (4282/2017) [2018] ZAECGHC 36 (21 May 2018)

Cook v Seabush Investments (Pty) Ltd (4282/2017) [2018] ZAECGHC 36 (21 May 2018)

The court found that the urgent application was launched with undue and self-created urgency, and the relief sought was overly broad and could not have succeeded. Morrison, acting as deponent and representative, was aware that the applicant company had no funds to satisfy cost orders and had previously paid such costs personally. His conduct in launching and pursuing the applications was not bona fide and was fraught with difficulty from the outset. The court held that Morrison should be joined as a party and ordered to pay all costs personally on the attorney and client scale, as his actions amounted to a material departure from the responsibilities of his office and were not justified...

Citation
[2018] ZAECGHC 36
Parties
Applicant: Geoffrey Martin Cook; Respondent: Seabush Investments (Pty) Ltd; Defendant: Murray Craig Morrison
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
21 May 2018
Case Number
4282/2017
Procedural Posture
Urgent Application / Costs and Joinder Determination Following Urgent Application Struck From the Roll
Outcome
Counter-application succeeds; Morrison is joined and ordered to pay all costs personally on the attorney and client scale.
Judges
M J Lowe
Legal Topics
Costs De Bonis Propriis, Joinder of Parties, Attorney and Client Costs, Urgent Application Struck, Fiduciary Liability
Civil Procedure Commercial and Corporate Costs De Bonis Propriis Joinder of Parties Attorney and Client Costs Urgent Application Struck Fiduciary Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Geoffrey Martin Cook

Applicant

Seabush Investments (Pty) Ltd

Respondent

Murray Craig Morrison

Defendant

Procedural Posture

Urgent Application / Costs and Joinder Determination Following Urgent Application Struck From the Roll

Legal Issues

  1. 1 Whether Murray Craig Morrison should be joined as a party to the counter-application and held personally liable for costs.
  2. 2 Whether costs should be awarded de bonis propriis and on the attorney and client scale.
  3. 3 Whether the urgent application and subsequent proceedings were brought bona fide or were misconceived.

Ratio Decidendi

The court found that the urgent application was launched with undue and self-created urgency, and the relief sought was overly broad and could not have succeeded. Morrison, acting as deponent and representative, was aware that the applicant company had no funds to satisfy cost orders and had previously paid such costs personally. His conduct in launching and pursuing the applications was not bona fide and was fraught with difficulty from the outset. The court held that Morrison should be joined as a party and ordered to pay all costs personally on the attorney and client scale, as his actions amounted to a material departure from the responsibilities of his office and were not justified...

Court Disposition

Counter-application succeeds; Morrison is joined and ordered to pay all costs personally on the attorney and client scale.

Orders

  • Murray Craig Morrison is joined as the Second Respondent in the Counter-Application.
  • Murray Craig Morrison is to pay all costs in his personal capacity on the attorney and client scale, including costs occasioned by the urgent application on 21 September 2017, the main application on 7 December 2017, costs occasioned by the postponement of the costs argument on 7 December 2017, and costs occasioned...