Costa and Another v Standard Bank of South Africa Limited (63765/2012) [2016] ZAGPPHC 1055 (15 December 2016)

Costa and Another v Standard Bank of South Africa Limited (63765/2012) [2016] ZAGPPHC 1055 (15 December 2016)

The applicants provided a reasonable explanation for their default, as they were unaware of the proceedings due to substituted service by publication, which they did not read. Their defence is bona fide and not merely a delaying tactic. They have disclosed a prima facie defence: Kensington was not indebted to Standard Bank in the amount claimed, and their accessory liability under section 26(5) of the Close Corporations Act does not arise because the loan agreement continued and repayments were made. These allegations, if proven, would constitute a defence to Standard Bank's claim. Accordingly, the requirements for rescission are met, and the default judgment must be rescinded.

Citation
[2016] ZAGPPHC 1055
Parties
Applicant: Norberto Jose Dos Santos Costa; Applicant: Ana Paula Ribeiro Goncalves Costa; Respondent: Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 December 2016
Case Number
63765/2012
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Default judgment rescinded; costs to be determined in the main action.
Judges
De Kok
Legal Topics
Rescission of Judgment, Default Judgment, Substituted Service, Accessory Liability, Close Corporations Act
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Substituted Service Accessory Liability Close Corporations Act

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Norberto Jose Dos Santos Costa

Applicant

Ana Paula Ribeiro Goncalves Costa

Applicant

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether the applicants have provided a reasonable explanation for their default.
  3. 3 Whether the applicants have disclosed a bona fide defence with prospects of success.

Ratio Decidendi

The applicants provided a reasonable explanation for their default, as they were unaware of the proceedings due to substituted service by publication, which they did not read. Their defence is bona fide and not merely a delaying tactic. They have disclosed a prima facie defence: Kensington was not indebted to Standard Bank in the amount claimed, and their accessory liability under section 26(5) of the Close Corporations Act does not arise because the loan agreement continued and repayments were made. These allegations, if proven, would constitute a defence to Standard Bank's claim. Accordingly, the requirements for rescission are met, and the default judgment must be rescinded.

Court Disposition

Default judgment rescinded; costs to be determined in the main action.

Orders

  • The default judgment granted against the applicants on 19 August 2013 is rescinded.
  • The costs of this application are costs in the cause.