De Waal v Astfin Gauteng (Pty) Ltd t/a Assetfin (59994/2016) [2017] ZAGPPHC 976 (13 December 2017)

De Waal v Astfin Gauteng (Pty) Ltd t/a Assetfin (59994/2016) [2017] ZAGPPHC 976 (13 December 2017)

The court found that the default judgment in respect of both claims was erroneously sought by the respondent, as the particulars of claim and supporting documents did not correspond with the allegations made. The error in the amounts claimed and the confusion between the two rental agreements rendered both judgments susceptible to rescission under Rule 42(1). The distinction between a judgment erroneously granted and one erroneously sought did not assist the applicant in opposing the respondent's counter-application. Both parties were entitled to rescission of the default judgment, and given that the respondent was the author of the mistake, it was equitable for each party to pay its own...

Citation
[2017] ZAGPPHC 976
Parties
Applicant: Marius De Waal; Respondent: Astfin Gauteng (Pty) Ltd t/a Assetfin
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 December 2017
Case Number
59994/2016
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Counter Application
Outcome
Both the applicant's and respondent's applications for rescission of the default judgment are granted.
Judges
Du Plessis
Legal Topics
Rescission of Judgment, Rule 42, Default Judgment, Counter Application
Civil Procedure Rescission of Judgment Rule 42 Default Judgment Counter Application

Case Brief

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Parties

Marius De Waal

Applicant

Astfin Gauteng (Pty) Ltd t/a Assetfin

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Counter Application

Legal Issues

  1. 1 Whether the default judgment granted on 9 September 2016 in respect of both claims was erroneously sought or granted.
  2. 2 Whether both parties are entitled to rescission of the default judgment under Rule 42(1).
  3. 3 Whether costs should be awarded to either party given the circumstances of the applications.

Ratio Decidendi

The court found that the default judgment in respect of both claims was erroneously sought by the respondent, as the particulars of claim and supporting documents did not correspond with the allegations made. The error in the amounts claimed and the confusion between the two rental agreements rendered both judgments susceptible to rescission under Rule 42(1). The distinction between a judgment erroneously granted and one erroneously sought did not assist the applicant in opposing the respondent's counter-application. Both parties were entitled to rescission of the default judgment, and given that the respondent was the author of the mistake, it was equitable for each party to pay its own...

Court Disposition

Both the applicant's and respondent's applications for rescission of the default judgment are granted.

Orders

  • The default judgment granted on 9 September 2016 in respect of both claims is rescinded and set aside.
  • Each party is ordered to pay its own costs.