Dass NO and Others v Lowewest Trading (Pty) Ltd (12161/2008) [2010] ZAKZDHC 1; 2011 (1) SA 48 (KZD) (18 January 2010)

Dass NO and Others v Lowewest Trading (Pty) Ltd (12161/2008) [2010] ZAKZDHC 1; 2011 (1) SA 48 (KZD) (18 January 2010)

The court found that the plaintiffs' service of a notice of bar after the summary judgment application was an irregular step but did not amount to a waiver of their right to summary judgment. The defendant, by filing a plea, cured any irregularity and could have applied to set aside the notice of bar but instead took a further step, triggering Rule 30(2)(a). The court held that the plaintiffs' failure to annex the written portion of the lease agreement to the particulars of claim was not fatal, as the agreement was partly oral and the terms were fully pleaded. No prejudice was shown by the defendant, and the court condoned the non-compliance with Rule 18(6). The application for summary...

Citation
[2010] ZAKZDHC 1
Parties
Plaintiff: Panduranga Sivalinga Dass NO; Plaintiff: Asokan Poogesen Naidu NO; Plaintiff: Sandakrisaran Naidu NO; Defendant: Lowewest Trading (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
18 January 2010
Case Number
12161/2008
Procedural Posture
Summary Judgment Application / Application for Summary Judgment and Interlocutory Costs Order
Outcome
Application for summary judgment refused; costs of the application reserved for trial court; defendant to pay costs of opposed hearing; action placed on expedited roll.
Judges
Tshabalala JP
Legal Topics
Summary Judgment, Rule 18 6 Non Compliance, Notice of Bar, Condonation of Irregular Step
Civil Procedure Summary Judgment Rule 18 6 Non Compliance Notice of Bar Condonation of Irregular Step

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 3 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

Panduranga Sivalinga Dass NO

Plaintiff

Asokan Poogesen Naidu NO

Plaintiff

Sandakrisaran Naidu NO

Plaintiff

Lowewest Trading (Pty) Ltd

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment and Interlocutory Costs Order

Legal Issues

  1. 1 Whether the plaintiffs waived their right to apply for summary judgment by serving a notice of bar.
  2. 2 Whether the plaintiffs' failure to annex the written portion of the lease agreement to the particulars of claim is fatal to the summary judgment application.
  3. 3 Whether the defendant is entitled to costs due to alleged procedural defects.

Ratio Decidendi

The court found that the plaintiffs' service of a notice of bar after the summary judgment application was an irregular step but did not amount to a waiver of their right to summary judgment. The defendant, by filing a plea, cured any irregularity and could have applied to set aside the notice of bar but instead took a further step, triggering Rule 30(2)(a). The court held that the plaintiffs' failure to annex the written portion of the lease agreement to the particulars of claim was not fatal, as the agreement was partly oral and the terms were fully pleaded. No prejudice was shown by the defendant, and the court condoned the non-compliance with Rule 18(6). The application for summary...

Court Disposition

Application for summary judgment refused; costs of the application reserved for trial court; defendant to pay costs of opposed hearing; action placed on expedited roll.

Orders

  • The application for summary judgment is refused.
  • The costs of the summary judgment application are reserved for decision by the trial court.