Durr v Noe and Others (A150/18; 6802/2013) [2019] ZAWCHC 10 (15 February 2019)

Durr v Noe and Others (A150/18; 6802/2013) [2019] ZAWCHC 10 (15 February 2019)

The court found that the trial court erred in its application of the test for exception by failing to assume the correctness of the pleaded facts and by prematurely considering the existence or terms of the partnership agreement. This error influenced the costs order, which was made on the principle that costs follow success. The erroneous application of the law constituted exceptional circumstances under section 16(2) of the Superior Courts Act, justifying the appeal against the costs order. The appeal was upheld, and the costs order set aside.

Citation
[2019] ZAWCHC 10
Parties
Appellant: Johan Durr; Respondent: Le Noe; Respondent: Neels Barnardt; Respondent: Charles Dickinson
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 February 2019
Case Number
A150/18; 6802/2013
Procedural Posture
Civil Appeal / Appeal Against Costs Order Following Exception to Conditional Counterclaim
Outcome
Appeal upheld; costs order set aside.
Judges
Baartman, Desai, Fortuin
Legal Topics
Exception to Pleadings, Costs on Appeal, Partnership Dispute, Counterclaim, Superior Courts Act
Civil Procedure Commercial and Corporate Exception to Pleadings Costs on Appeal Partnership Dispute Counterclaim Superior Courts Act

Case Brief

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Parties

Johan Durr

Appellant

Le Noe

Respondent

Neels Barnardt

Respondent

Charles Dickinson

Respondent

Procedural Posture

Civil Appeal / Appeal Against Costs Order Following Exception to Conditional Counterclaim

Legal Issues

  1. 1 Whether the trial court erred in dismissing the exception to the respondents' conditional counterclaim.
  2. 2 Whether the costs order granted by the trial court was justified in light of the erroneous application of the exception test.
  3. 3 Whether exceptional circumstances exist to warrant entertaining an appeal against a costs order under section 16(2) of the Superior Courts Act.

Ratio Decidendi

The court found that the trial court erred in its application of the test for exception by failing to assume the correctness of the pleaded facts and by prematurely considering the existence or terms of the partnership agreement. This error influenced the costs order, which was made on the principle that costs follow success. The erroneous application of the law constituted exceptional circumstances under section 16(2) of the Superior Courts Act, justifying the appeal against the costs order. The appeal was upheld, and the costs order set aside.

Court Disposition

Appeal upheld; costs order set aside.

Orders

  • The appeal is upheld with costs.
  • The costs order made by the court a quo in the exception application, in terms of section 19(d) of the Superior Courts Act 10 of 2013, is set aside.