De Wet NO v Poly Clear International CC (7958/2007) [2009] ZAWCHC 53 (17 February 2009)

De Wet NO v Poly Clear International CC (7958/2007) [2009] ZAWCHC 53 (17 February 2009)

The applicant failed to establish that the respondent is liable for the purchase price of the goods, as the original written agreement lapsed due to non-fulfilment of the suspensive condition and was not revived by waiver, estoppel, or a new tacit agreement. The respondent's version, supported by the facts, indicates that any agreement was always subject to obtaining finance, which did not occur. There is no unequivocal conduct from which a new tacit agreement can be inferred. Consequently, the applicant has not shown that the respondent is unable to pay a debt that is due, and the application for provisional liquidation must be dismissed.

Citation
[2009] ZAWCHC 53
Parties
Applicant: SW De Wet N.O.; Respondent: Poly Clear International CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 February 2009
Case Number
7958/2007
Procedural Posture
Urgent Application / Opposed Application for Provisional Liquidation
Outcome
Application dismissed with costs.
Judges
D Potgieter
Legal Topics
Close Corporations Act, Provisional Liquidation, Suspensive Condition, Tacit Contract, Estoppel
Commercial and Corporate Close Corporations Act Provisional Liquidation Suspensive Condition Tacit Contract Estoppel

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Parties

SW De Wet N.O.

Applicant

Poly Clear International CC

Respondent

Procedural Posture

Urgent Application / Opposed Application for Provisional Liquidation

Legal Issues

  1. 1 Whether the respondent is liable for payment of the purchase price under the agreement of sale.
  2. 2 Whether the suspensive condition in the agreement was fulfilled or waived.
  3. 3 Whether a new tacit agreement of sale was concluded between the parties.

Ratio Decidendi

The applicant failed to establish that the respondent is liable for the purchase price of the goods, as the original written agreement lapsed due to non-fulfilment of the suspensive condition and was not revived by waiver, estoppel, or a new tacit agreement. The respondent's version, supported by the facts, indicates that any agreement was always subject to obtaining finance, which did not occur. There is no unequivocal conduct from which a new tacit agreement can be inferred. Consequently, the applicant has not shown that the respondent is unable to pay a debt that is due, and the application for provisional liquidation must be dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.