Engen Petroleum Limited v DAV Distribution CC t/a Willowcrest Convenience Centre (39461-2020) [2024] ZAGPJHC 207 (1 February 2024)

Engen Petroleum Limited v DAV Distribution CC t/a Willowcrest Convenience Centre (39461-2020) [2024] ZAGPJHC 207 (1 February 2024)

The court found that the respondent's arguments regarding the nature of the section 18(3) application were unsustainable and unsupported by authority. The application for costs was triggered by the respondent's own conduct in launching and then withdrawing the application for leave to appeal without explanation. The withdrawal, coupled with the absence of any justification, indicated that the application for leave to appeal lacked merit and was intended to frustrate the applicant's rights. The general principle that costs follow the result applied, and there was no reason to depart from awarding costs on an attorney and client scale as provided for in the lease agreement. The respondent...

Citation
[2024] ZAGPJHC 207
Parties
Applicant: Engen Petroleum Limited; Respondent: DAV Distribution CC t/a Willowcrest Convenience Centre
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 February 2024
Case Number
39461/2020
Procedural Posture
Leave to Appeal / Costs Determination Following Withdrawal of Leave to Appeal
Outcome
Respondent ordered to pay applicant's legal costs for the section 18(3) application on attorney and client scale.
Judges
Noko
Legal Topics
Costs Award, Section 18 Application, Withdrawal of Appeal, Attorney and Client Scale
Civil Procedure Costs Award Section 18 Application Withdrawal of Appeal Attorney and Client Scale

Case Brief

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Parties

Engen Petroleum Limited

Applicant

DAV Distribution CC t/a Willowcrest Convenience Centre

Respondent

Procedural Posture

Leave to Appeal / Costs Determination Following Withdrawal of Leave to Appeal

Legal Issues

  1. 1 Whether the respondent should be ordered to pay the applicant's legal costs for the section 18(3) application after withdrawing its application for leave to appeal.
  2. 2 Whether the section 18(3) application creates procedural rights or is an indulgence requiring a costs tender.
  3. 3 Whether the respondent's withdrawal of the leave to appeal application without explanation constitutes malice or abuse of process.

Ratio Decidendi

The court found that the respondent's arguments regarding the nature of the section 18(3) application were unsustainable and unsupported by authority. The application for costs was triggered by the respondent's own conduct in launching and then withdrawing the application for leave to appeal without explanation. The withdrawal, coupled with the absence of any justification, indicated that the application for leave to appeal lacked merit and was intended to frustrate the applicant's rights. The general principle that costs follow the result applied, and there was no reason to depart from awarding costs on an attorney and client scale as provided for in the lease agreement. The respondent...

Court Disposition

Respondent ordered to pay applicant's legal costs for the section 18(3) application on attorney and client scale.

Orders

  • The respondent is ordered to pay the applicant’s legal costs in respect of the section 18(3) application on attorney and client scale.