Factaprops 52 CC v Nedbank Limited (29142/2014) [2015] ZAGPJHC 156 (26 June 2015)

Factaprops 52 CC v Nedbank Limited (29142/2014) [2015] ZAGPJHC 156 (26 June 2015)

The court found that the respondent's withdrawal from the loan agreement was not a lawful exercise of discretion under the relevant clauses, as the applicant had tendered compliance and the respondent had not put the applicant on notice to produce valuations or allow access for valuation. The respondent's undertaking to pay the outstanding rates and taxes was made for the benefit of both the applicant and the respondent, as the transaction could not proceed without it. The respondent failed to provide a valid defence to the application for specific performance, and the applicant had no alternative remedy. Accordingly, the applicant was entitled to the relief sought, including orders...

Citation
[2015] ZAGPJHC 156
Parties
Applicant: Factaprops 52 CC; Respondent: Nedbank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 June 2015
Case Number
29142/2014
Procedural Posture
Specific Performance Application / Judgment
Outcome
Application for specific performance granted in favour of the applicant.
Judges
Kathree-Setiloane
Legal Topics
Specific Performance, Contractual Undertaking, Repudiation, Mortgage Bond Registration, Clearance Certificate
Commercial and Corporate Civil Procedure Specific Performance Contractual Undertaking Repudiation Mortgage Bond Registration Clearance Certificate

Case Brief

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Parties

Factaprops 52 CC

Applicant

Nedbank Limited

Respondent

Procedural Posture

Specific Performance Application / Judgment

Legal Issues

  1. 1 Whether the respondent is contractually obliged to pay outstanding rates and imposts to the City of Johannesburg to enable transfer of the property.
  2. 2 Whether the respondent's withdrawal from the loan agreement constituted a lawful exercise of discretion under the agreement.
  3. 3 Whether the applicant is entitled to specific performance and other relief sought in terms of the loan agreement and undertaking.

Ratio Decidendi

The court found that the respondent's withdrawal from the loan agreement was not a lawful exercise of discretion under the relevant clauses, as the applicant had tendered compliance and the respondent had not put the applicant on notice to produce valuations or allow access for valuation. The respondent's undertaking to pay the outstanding rates and taxes was made for the benefit of both the applicant and the respondent, as the transaction could not proceed without it. The respondent failed to provide a valid defence to the application for specific performance, and the applicant had no alternative remedy. Accordingly, the applicant was entitled to the relief sought, including orders...

Court Disposition

Application for specific performance granted in favour of the applicant.

Orders

  • The respondent is ordered to forthwith comply with its undertaking of 21 July 2014 to pay all outstanding rates and imposts due to the City of Johannesburg in respect of erf 159 and portion 1 of erf 161 Selby, Johannesburg, to enable the conveyancer to obtain a clearance certificate.
  • The respondent is directed to abide timeously with all its obligations in terms of the agreement dated 20 November 2013 when called upon to do so by the conveyancers.