Finnemore and Another v Finnemore and Another (2032/2005) [2005] ZAFSHC 57 (17 June 2005)

Finnemore and Another v Finnemore and Another (2032/2005) [2005] ZAFSHC 57 (17 June 2005)

The court found, on the probabilities, that the respondent had indeed obstructed the applicant's attempts to obtain property valuations, as evidenced by repeated correspondence and the affidavit of Mr. Pretorius. The respondent's bare denials were discredited by the documentary evidence and his own admissions. The applicant was entitled to act urgently given her obligations under the settlement agreement and her lack of physical presence in Bloemfontein. The respondent was contractually obliged to provide access and cooperation. The applicant's actions were prudent and justified, and the respondent's conduct warranted confirmation of the rule nisi and a punitive costs order against him.

Citation
[2005] ZAFSHC 57
Parties
Applicant: Ellen-Ann Finnemore; Applicant: Ellen-Ann Finnemore N.O.; Respondent: Dudley Arthur Finnemore; Respondent: Dudley Arthur Finnemore N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 June 2005
Case Number
2032/2005
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Confirmation of Interim Order
Outcome
The rule nisi dated 18 May 2005 is confirmed; the applicant's application succeeds.
Judges
Malherbe
Legal Topics
Enforcement of Settlement Agreement, Access to Property, Urgent Interdict, Costs Order
Civil Procedure Land and Property Enforcement of Settlement Agreement Access to Property Urgent Interdict Costs Order

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Parties

Ellen-Ann Finnemore

Applicant

Ellen-Ann Finnemore N.O.

Applicant

Dudley Arthur Finnemore

Respondent

Dudley Arthur Finnemore N.O.

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Confirmation of Interim Order

Legal Issues

  1. 1 Whether the respondent unlawfully denied access to the property for valuation purposes as required by the settlement agreement.
  2. 2 Whether the applicant was entitled to a final order compelling access for valuators and a punitive costs order.

Ratio Decidendi

The court found, on the probabilities, that the respondent had indeed obstructed the applicant's attempts to obtain property valuations, as evidenced by repeated correspondence and the affidavit of Mr. Pretorius. The respondent's bare denials were discredited by the documentary evidence and his own admissions. The applicant was entitled to act urgently given her obligations under the settlement agreement and her lack of physical presence in Bloemfontein. The respondent was contractually obliged to provide access and cooperation. The applicant's actions were prudent and justified, and the respondent's conduct warranted confirmation of the rule nisi and a punitive costs order against him.

Court Disposition

The rule nisi dated 18 May 2005 is confirmed; the applicant's application succeeds.

Orders

  • The rule nisi dated 18 May 2005 is confirmed.
  • Respondents are ordered to allow valuators appointed by First National Bank and Nedbank Limited access to the property at Erf 17, Pentagon Park, 97 Gascony Crescent, Bloemfontein, for valuation purposes.