Diamond Core Resources (Pty) Ltd v River Corporate Finance (Pty) Ltd (642/2009) [2009] ZANCHC 78 (11 December 2009)

Diamond Core Resources (Pty) Ltd v River Corporate Finance (Pty) Ltd (642/2009) [2009] ZANCHC 78 (11 December 2009)

The court found no reasonable prospect of success on appeal regarding both the refusal to reopen the case and the final liquidation order. The defence of supervening impossibility was rejected, as the applicant's inability to pay was not absolute impossibility but rather financial difficulty, which is foreseeable and does not extinguish contractual obligations. The applicant's conduct in raising conflicting defences and failing to candidly plead its position was criticized. The instructing attorney's repeated irregular procedures, disregard for court rules, and unprofessional conduct warranted a punitive costs order de bonis propriis on the attorney and client scale. The court declined to...

Citation
[2009] ZANCHC 78
Parties
Applicant: Diamond Core Resources (Pty) Ltd (in liquidation); Respondent: River Corporate Finance (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
11 December 2009
Case Number
642/2009
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Costs De Bonis Propriis
Outcome
Leave to appeal in respect of both the reopening and winding-up orders is refused. Costs of the hearings on 13 and 20 November 2009 are to be borne by Mr Stephen Thomson of Thomson-Wilks, Johannesburg, de bonis propriis on the attorney and client scale.
Judges
KGOMO JP
Legal Topics
Leave to Appeal, Final Liquidation, Supervening Impossibility, Costs De Bonis Proriis, Reopening of Case
Civil Procedure Commercial and Corporate Leave to Appeal Final Liquidation Supervening Impossibility Costs De Bonis Proriis Reopening of Case

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Parties

Diamond Core Resources (Pty) Ltd (in liquidation)

Applicant

River Corporate Finance (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Costs De Bonis Propriis

Legal Issues

  1. 1 Whether Diamond Core Resources should be granted leave to appeal against the refusal to reopen its case and the final liquidation order.
  2. 2 Whether the defence of supervening impossibility extinguished the applicant's obligation to pay the success fee.
  3. 3 Whether costs de bonis propriis should be awarded against the instructing attorney for irregular conduct.

Ratio Decidendi

The court found no reasonable prospect of success on appeal regarding both the refusal to reopen the case and the final liquidation order. The defence of supervening impossibility was rejected, as the applicant's inability to pay was not absolute impossibility but rather financial difficulty, which is foreseeable and does not extinguish contractual obligations. The applicant's conduct in raising conflicting defences and failing to candidly plead its position was criticized. The instructing attorney's repeated irregular procedures, disregard for court rules, and unprofessional conduct warranted a punitive costs order de bonis propriis on the attorney and client scale. The court declined to...

Court Disposition

Leave to appeal in respect of both the reopening and winding-up orders is refused. Costs of the hearings on 13 and 20 November 2009 are to be borne by Mr Stephen Thomson of Thomson-Wilks, Johannesburg, de bonis propriis on the attorney and client scale.

Orders

  • The applications for leave to appeal in respect of both the reopening and the winding-up orders are refused.
  • The costs of hearing of the applications for 13 and 20 November 2009 are to be borne by Mr Stephen Thomson of the firm Thomson-Wilks of Johannesburg de bonis propriis on the attorney and client scale.