Dunne v Kroch Builders CC (89390/2015) [2017] ZAGPPHC 528 (22 August 2017)

Dunne v Kroch Builders CC (89390/2015) [2017] ZAGPPHC 528 (22 August 2017)

The court found that the alleged contradiction between the contract term ('no less than 7 days') and the letter of demand ('7 days') was not material. The plaintiff was entitled to demand performance within the minimum period stipulated in the contract, and the defendant was not prejudiced or left uncertain as to the case it had to meet. The exception was therefore dismissed. Regarding costs, the court held that the application to strike out precipitated the amendment and that the defendant was substantially successful in this regard, warranting a costs order in its favour for the application to strike out.

Citation
[2017] ZAGPPHC 528
Parties
Plaintiff: EE Dunne; Defendant: Kroch Builders CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 August 2017
Case Number
89390/2015
Procedural Posture
Exception Application / Ruling on Exception and Costs
Outcome
Exception dismissed with costs limited to those incurred from 23 November 2016. Costs of the application to strike out awarded to the defendant.
Judges
A Millar
Legal Topics
Exception Procedure, Vague and Embarrassing Pleading, Costs Order
Civil Procedure Exception Procedure Vague and Embarrassing Pleading Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

EE Dunne

Plaintiff

Kroch Builders CC

Defendant

Procedural Posture

Exception Application / Ruling on Exception and Costs

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim are vague and embarrassing due to alleged contradictions between the contract terms and the letter of demand.
  2. 2 Whether the defendant is unable to plead to the particulars of claim as a result of the alleged contradiction.
  3. 3 Determination of costs relating to the application to strike out certain averments.

Ratio Decidendi

The court found that the alleged contradiction between the contract term ('no less than 7 days') and the letter of demand ('7 days') was not material. The plaintiff was entitled to demand performance within the minimum period stipulated in the contract, and the defendant was not prejudiced or left uncertain as to the case it had to meet. The exception was therefore dismissed. Regarding costs, the court held that the application to strike out precipitated the amendment and that the defendant was substantially successful in this regard, warranting a costs order in its favour for the application to strike out.

Court Disposition

Exception dismissed with costs limited to those incurred from 23 November 2016. Costs of the application to strike out awarded to the defendant.

Orders

  • The exception is dismissed with costs, such costs however limited to those incurred from 23 November 2016.
  • The costs of the application to strike out are to be paid by the plaintiff.