Elsdon and Another v Schoeman and Others (9996/2015) [2016] ZAGPPHC 917 (17 October 2016)

Elsdon and Another v Schoeman and Others (9996/2015) [2016] ZAGPPHC 917 (17 October 2016)

The court found that the applicants failed to provide an acceptable explanation for their default and delay in bringing the rescission application. Their conduct, including opposing the taxation of the bill of costs rather than seeking rescission, indicated a lack of bona fides. The applicants did not set out any facts to sustain a bona fide defence to the cost order. The ex parte application was deemed an abuse of process, and the second and third respondents should have been afforded the courtesy of responding to a request for an undertaking. The inclusion of senior counsel's costs in the cost order was addressed, with the court noting that the taxing master had exercised discretion in...

Citation
[2016] ZAGPPHC 917
Parties
Applicant: Errol Elsdon; Applicant: Tracey Roscher; Respondent: Christiaan Schoeman; Respondent: Stemela & Lubbe Inc; Respondent: Wilna Lubbe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 October 2016
Case Number
9996/2015
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment (costs Order)
Outcome
Application for rescission dismissed with costs.
Judges
G. T. Avvakoumides
Legal Topics
Rescission of Judgment, Costs Order, Default Judgment, Bona Fide Defence
Civil Procedure Rescission of Judgment Costs Order Default Judgment Bona Fide Defence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Errol Elsdon

Applicant

Tracey Roscher

Applicant

Christiaan Schoeman

Respondent

Stemela & Lubbe Inc

Respondent

Wilna Lubbe

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment (costs Order)

Legal Issues

  1. 1 Whether the applicants provided a reasonable explanation for their default in attending court.
  2. 2 Whether the application for rescission was brought bona fide and without undue delay.
  3. 3 Whether the applicants have set out facts to sustain a bona fide defence to the cost order.

Ratio Decidendi

The court found that the applicants failed to provide an acceptable explanation for their default and delay in bringing the rescission application. Their conduct, including opposing the taxation of the bill of costs rather than seeking rescission, indicated a lack of bona fides. The applicants did not set out any facts to sustain a bona fide defence to the cost order. The ex parte application was deemed an abuse of process, and the second and third respondents should have been afforded the courtesy of responding to a request for an undertaking. The inclusion of senior counsel's costs in the cost order was addressed, with the court noting that the taxing master had exercised discretion in...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.