du Toit v Curlewis and Another (78194/18) [2020] ZAGPPHC 602 (23 October 2020)

du Toit v Curlewis and Another (78194/18) [2020] ZAGPPHC 602 (23 October 2020)

The court held that the plaintiff's amended particulars of claim are sufficient to disclose a cause of action. The allegations, if proven, establish that the plaintiff engaged the defendants to protect his interests in acquiring membership in the close corporation and to take legal action against those who unlawfully disposed of the corporation's assets. The defendants' alleged failure to advise and act resulted in the prescription of claims and the loss of property, which diminished the value of the plaintiff's membership interest. The court rejected the defendants' argument that no loss occurred because the CC remains the owner, noting that the unlawful sale deprived the plaintiff of an...

Citation
[2020] ZAGPPHC 602
Parties
Plaintiff: Jappie R du Toit; Defendant: L G Curlewis; Defendant: A L Maree
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 October 2020
Case Number
78194/18
Procedural Posture
Exception Application / Exception to Amended Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
T P Mudau
Legal Topics
Professional Negligence, Breach of Attorney Mandate, Damages for Breach of Contract, Prescription of Claims, Close Corporation Membership, Rei Vindicatio
Civil Procedure Commercial and Corporate Professional Negligence Breach of Attorney Mandate Damages for Breach of Contract Prescription of Claims Close Corporation Membership Rei Vindicatio

Case Brief

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Parties

Jappie R du Toit

Plaintiff

L G Curlewis

Defendant

A L Maree

Defendant

Procedural Posture

Exception Application / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's amended particulars of claim disclose a cause of action against the defendants.
  2. 2 Whether the alleged failure of the defendants to advise and act timeously resulted in the plaintiff's damages.
  3. 3 Whether the plaintiff's claims against third parties became prescribed due to the defendants' conduct.

Ratio Decidendi

The court held that the plaintiff's amended particulars of claim are sufficient to disclose a cause of action. The allegations, if proven, establish that the plaintiff engaged the defendants to protect his interests in acquiring membership in the close corporation and to take legal action against those who unlawfully disposed of the corporation's assets. The defendants' alleged failure to advise and act resulted in the prescription of claims and the loss of property, which diminished the value of the plaintiff's membership interest. The court rejected the defendants' argument that no loss occurred because the CC remains the owner, noting that the unlawful sale deprived the plaintiff of an...

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed.
  • The defendants are ordered to pay the costs of the exception.