Everite AC Pipes (Pty) Ltd v J & R Tosi Construction CC and Another (6170/2002) [2005] ZAGPHC 137 (19 January 2005)

Everite AC Pipes (Pty) Ltd v J & R Tosi Construction CC and Another (6170/2002) [2005] ZAGPHC 137 (19 January 2005)

The court found that the contract for the supply of goods was concluded between the plaintiff and the first defendant. The evidence showed that all invoices were made out to the first defendant, who made all payments, and the plaintiff had a credit application and suretyship from the defendants. The correspondence with Matemba Civils (Pty) Ltd was explained as administrative convenience and did not alter the contractual relationship. The defendants' version was vague and inconsistent, and the probabilities favoured the plaintiff's case. The quantum of the debt was correctly reflected in the certificate of balance, with appropriate credits given for over-supply and goods not according to...

Citation
[2005] ZAGPHC 137
Parties
Plaintiff: Everite AC Pipes (Pty) Ltd; Defendant: J&R Tosi Construction CC; Defendant: John Louis George Tosi
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 January 2005
Case Number
6170/2002
Procedural Posture
Civil Trial / Final Judgment
Outcome
Judgment for the plaintiff. Defendants are ordered to pay the claimed amount with interest and costs.
Judges
N J Motata
Legal Topics
Suretyship, Goods Sold and Delivered, Contractual Liability, Quantum of Debt
Commercial and Corporate Civil Procedure Suretyship Goods Sold and Delivered Contractual Liability Quantum of Debt

Case Brief

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Parties

Everite AC Pipes (Pty) Ltd

Plaintiff

J&R Tosi Construction CC

Defendant

John Louis George Tosi

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the contract for the supply of goods was concluded between the plaintiff and the first defendant or with Matemba Civils (Pty) Ltd.
  2. 2 Whether the first defendant acted as agent for Matemba Civils (Pty) Ltd.
  3. 3 Whether the defendants are liable for the outstanding amount claimed by the plaintiff.

Ratio Decidendi

The court found that the contract for the supply of goods was concluded between the plaintiff and the first defendant. The evidence showed that all invoices were made out to the first defendant, who made all payments, and the plaintiff had a credit application and suretyship from the defendants. The correspondence with Matemba Civils (Pty) Ltd was explained as administrative convenience and did not alter the contractual relationship. The defendants' version was vague and inconsistent, and the probabilities favoured the plaintiff's case. The quantum of the debt was correctly reflected in the certificate of balance, with appropriate credits given for over-supply and goods not according to...

Court Disposition

Judgment for the plaintiff. Defendants are ordered to pay the claimed amount with interest and costs.

Orders

  • The defendants must pay the plaintiff R64,893.73 with interest at 14.5% per annum from 31 December 2001 to date of payment.
  • First and second defendants must pay the costs of the action, the one paying the other to be absolved.