Cordustex Manufacturing (Pty) Ltd v Building Product Design Ltd (1792/2012) [2012] ZAECPEHC 47 (3 August 2012)

Cordustex Manufacturing (Pty) Ltd v Building Product Design Ltd (1792/2012) [2012] ZAECPEHC 47 (3 August 2012)

The court held that the exclusive jurisdiction clause in the Material Supply Agreement did not preclude the South African court from granting an attachment order over the respondent's equipment located in Port Elizabeth. The attachment was necessary to confirm jurisdiction for the applicant's intended action, and the trial court would ultimately determine the effect of the jurisdiction clause. The applicant had established a prima facie case, and the respondent admitted owing the amounts claimed. The applicant's failure to disclose the clause and parallel litigation was disapproved, but did not bar relief. The requirements for attachment were met, and the rule nisi was confirmed.

Citation
[2012] ZAECPEHC 47
Parties
Applicant: Cordustex Manufacturing (Pty) Ltd; Defendant: Building Product Design Ltd
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
3 August 2012
Case Number
1792/2012
Procedural Posture
Urgent Application / Return Day of Rule Nisi; Confirmation of Attachment Order
Outcome
Rule nisi confirmed; attachment order granted; no order as to costs against the respondent.
Judges
E Revelas
Legal Topics
Attachment Ad Fundandam Jurisdictionem, Exclusive Jurisdiction Clause, Ex Parte Application, Contractual Ouster Clause
Civil Procedure Commercial and Corporate Attachment Ad Fundandam Jurisdictionem Exclusive Jurisdiction Clause Ex Parte Application Contractual Ouster Clause

Case Brief

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Parties

Cordustex Manufacturing (Pty) Ltd

Applicant

Building Product Design Ltd

Defendant

Procedural Posture

Urgent Application / Return Day of Rule Nisi; Confirmation of Attachment Order

Legal Issues

  1. 1 Whether clause 17 of the Material Supply Agreement, an exclusive jurisdiction clause in favour of English courts, precludes the South African court from granting an attachment order over the respondent's property in South Africa.
  2. 2 Whether the applicant met all requirements for confirmation of the attachment order to found or confirm jurisdiction.
  3. 3 Whether the applicant's failure to disclose the existence of the exclusive jurisdiction clause and parallel litigation affects its entitlement to relief.

Ratio Decidendi

The court held that the exclusive jurisdiction clause in the Material Supply Agreement did not preclude the South African court from granting an attachment order over the respondent's equipment located in Port Elizabeth. The attachment was necessary to confirm jurisdiction for the applicant's intended action, and the trial court would ultimately determine the effect of the jurisdiction clause. The applicant had established a prima facie case, and the respondent admitted owing the amounts claimed. The applicant's failure to disclose the clause and parallel litigation was disapproved, but did not bar relief. The requirements for attachment were met, and the rule nisi was confirmed.

Court Disposition

Rule nisi confirmed; attachment order granted; no order as to costs against the respondent.

Orders

  • The rule is confirmed.