Dainfern Shopping Centre (Pty) Ltd v Berry Hill Trading 154 CC t/a Bobby's Hire Shop (17251/10) [2010] ZAGPPHC 171 (24 August 2010)

Dainfern Shopping Centre (Pty) Ltd v Berry Hill Trading 154 CC t/a Bobby's Hire Shop (17251/10) [2010] ZAGPPHC 171 (24 August 2010)

The court found that the plaintiff failed to annex a complete copy of the written lease agreement as required by Rule 18(6), rendering the particulars of claim excipiable and/or vague and embarrassing. The missing clauses prevented the defendant and the court from determining the plaintiff's entitlement to certain...

Source-derived case information.

Citation
[2010] ZAGPPHC 171
Parties
Plaintiff: Dainfern Shopping Centre (Pty) Ltd; Defendant: Berry Hill Trading 154 CC t/a Bobby's Hire Shop
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 August 2010
Case Number
17251/10
Procedural Posture
Summary Judgment Application / Application for Summary Judgment
Outcome
Summary judgment application dismissed; defendant granted leave to defend.
Judges
T J Raulinga
Legal Topics
Summary Judgment, Lease Agreement, Exception and Irregular Proceedings, Tacit Terms, Breach of Contract
Civil Procedure Land and Property Summary Judgment Lease Agreement Exception and Irregular Proceedings Tacit Terms Breach of Contract

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Parties

Dainfern Shopping Centre (Pty) Ltd

Plaintiff

Berry Hill Trading 154 CC t/a Bobby's Hire Shop

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim comply with Rule 18(6) of the Uniform Rules of Court regarding annexing the written lease agreement.
  2. 2 Whether the defendant has raised a bona fide defence sufficient to resist summary judgment.
  3. 3 Whether the absence of certain pages of the lease agreement renders the particulars of claim excipiable or vague and embarrassing.

Ratio Decidendi

The court found that the plaintiff failed to annex a complete copy of the written lease agreement as required by Rule 18(6), rendering the particulars of claim excipiable and/or vague and embarrassing. The missing clauses prevented the defendant and the court from determining the plaintiff's entitlement to certain claims, such as payment for utilities and the right to cancel and evict. Additionally, the defendant raised a bona fide defence based on a tacit term requiring the plaintiff to provide a functioning shopping centre, which was not fulfilled. The court held that these grounds were sufficient to grant the defendant leave to defend and dismissed the summary judgment application with...

Court Disposition

Summary judgment application dismissed; defendant granted leave to defend.

Orders

  • The plaintiff's application for summary judgment is dismissed with costs.
  • The defendant is granted leave to defend the action.