Dales NO and Others v Herd (8598/11) [2013] ZAKZDHC 54 (5 September 2013)

Dales NO and Others v Herd (8598/11) [2013] ZAKZDHC 54 (5 September 2013)

The court found that the plaintiffs failed to join all trustees of the MBD Family Trust in the action against the defendant, and did not provide evidence of proper authorisation or a resolution allowing some trustees to act on behalf of all. The trust deed required either a meeting or a written resolution for such authorisation, neither of which was presented. The omission of a trustee was not a mere technicality but a substantive defect that went to the heart of the trust's juristic nature. As a result, the provisional sentence summons was fatally defective and the action was a nullity. The court dismissed the plaintiffs' action with costs.

Citation
[2013] ZAKZDHC 54
Parties
Plaintiff: Maxwell Barrington Dales NO; Plaintiff: Andrew Mark Dunsdon NO; Plaintiff: Fay Mary Pickup NO Udo; Plaintiff: Herbert Goedeke NO; Defendant: David Allen James Herd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
5 September 2013
Case Number
8598/11
Procedural Posture
Civil Action / Provisional Sentence
Outcome
Plaintiffs' action for provisional sentence dismissed with costs.
Judges
Jeffrey
Legal Topics
Joinder of Trustees, Acknowledgment of Debt, National Credit Act Notice, Trust Litigation, Provisional Sentence, Non Joinder
Civil Procedure Commercial and Corporate Joinder of Trustees Acknowledgment of Debt National Credit Act Notice Trust Litigation Provisional Sentence Non Joinder

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

Maxwell Barrington Dales NO

Plaintiff

Andrew Mark Dunsdon NO

Plaintiff

Fay Mary Pickup NO Udo

Plaintiff

Herbert Goedeke NO

Plaintiff

David Allen James Herd

Defendant

Procedural Posture

Civil Action / Provisional Sentence

Legal Issues

  1. 1 Whether the failure to join all trustees renders the provisional sentence summons fatally defective.
  2. 2 Whether the absence of a valid s 129 National Credit Act notice precludes the plaintiffs from proceeding.
  3. 3 Whether the plaintiffs were duly authorised to institute action against the defendant.

Ratio Decidendi

The court found that the plaintiffs failed to join all trustees of the MBD Family Trust in the action against the defendant, and did not provide evidence of proper authorisation or a resolution allowing some trustees to act on behalf of all. The trust deed required either a meeting or a written resolution for such authorisation, neither of which was presented. The omission of a trustee was not a mere technicality but a substantive defect that went to the heart of the trust's juristic nature. As a result, the provisional sentence summons was fatally defective and the action was a nullity. The court dismissed the plaintiffs' action with costs.

Court Disposition

Plaintiffs' action for provisional sentence dismissed with costs.

Orders

  • The plaintiffs' action for provisional sentence is dismissed with costs.