Durr v Noe and Others (6802/2013) [2017] ZAWCHC 162 (8 September 2017)

Durr v Noe and Others (6802/2013) [2017] ZAWCHC 162 (8 September 2017)

The court held that, applying general partnership principles, a partner has no right of action against another for the balance owing until after final settlement of accounts or winding up. The defendants' conditional counterclaim is premised on the court first finding the existence and termination of a partnership agreement. As these issues are to be determined in the main action, it would be premature to uphold the exception at this stage. The pleadings do not conclusively fail to disclose a cause of action, as the validity of the counterclaim depends on the outcome of the main action regarding the partnership agreement. Therefore, the exception must be dismissed, and the issue may be...

Citation
[2017] ZAWCHC 162
Parties
Applicant: Johan Durr; Respondent: Le Noe; Respondent: Neels Barnardt; Respondent: Charles Dickinson
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 September 2017
Case Number
6802/2013
Procedural Posture
Exception Application / Exception to Conditional Counterclaim Argued and Decided
Outcome
Exception dismissed with costs.
Judges
Andrews AJ
Legal Topics
Partnership Agreement, Actio Pro Socio, Conditional Counterclaim, Liquidation of Partnership, Statement and Debatement
Commercial and Corporate Partnership Agreement Actio Pro Socio Conditional Counterclaim Liquidation of Partnership Statement and Debatement

Case Brief

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Parties

Johan Durr

Applicant

Le Noe

Respondent

Neels Barnardt

Respondent

Charles Dickinson

Respondent

Procedural Posture

Exception Application / Exception to Conditional Counterclaim Argued and Decided

Legal Issues

  1. 1 Whether the defendants' conditional counterclaim discloses a cause of action in light of partnership law.
  2. 2 Whether damages can be claimed by partners before settlement of accounts and winding up of the partnership.
  3. 3 Whether the actio pro socio allows direct payment to individual partners prior to liquidation.

Ratio Decidendi

The court held that, applying general partnership principles, a partner has no right of action against another for the balance owing until after final settlement of accounts or winding up. The defendants' conditional counterclaim is premised on the court first finding the existence and termination of a partnership agreement. As these issues are to be determined in the main action, it would be premature to uphold the exception at this stage. The pleadings do not conclusively fail to disclose a cause of action, as the validity of the counterclaim depends on the outcome of the main action regarding the partnership agreement. Therefore, the exception must be dismissed, and the issue may be...

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.