First Rand Bank Ltd t/a Wesbank v Dual Discount Wholesalers CC (2142/2009) [2013] ZAKZDHC 23 (16 May 2013)

First Rand Bank Ltd t/a Wesbank v Dual Discount Wholesalers CC (2142/2009) [2013] ZAKZDHC 23 (16 May 2013)

The court found that the defendant breached clauses 3 and 6 of the main agreement by delivering a vehicle that did not conform to the description and specification in the invoice. The evidence established that the defendant knowingly described the vehicle as an SL55 AMG, despite it being an S55 AMG, and that this misdescription was material. Clause 18 of the agreement required any variation to be in writing, and no evidence was presented that the parties agreed to vary this clause or the description in writing. The defendant's reliance on oral instructions from the plaintiff's employee was rejected, as such instructions could not override the written contract. The indemnity clause in the...

Citation
[2013] ZAKZDHC 23
Parties
Plaintiff: First Rand Bank Limited t/a Wesbank; Defendant: Dual Discount Wholesalers CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 May 2013
Case Number
2142/2009
Procedural Posture
Civil Trial / Liability Phase; Quantum Deferred
Outcome
Defendant found liable for damages consequent to breach of warranty; quantum to be determined.
Judges
Mnguni
Legal Topics
Breach of Contract, Warranty Liability, Indemnity Clause, Damages Assessment
Commercial and Corporate Civil Procedure Breach of Contract Warranty Liability Indemnity Clause Damages Assessment

Case Brief

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Parties

First Rand Bank Limited t/a Wesbank

Plaintiff

Dual Discount Wholesalers CC

Defendant

Procedural Posture

Civil Trial / Liability Phase; Quantum Deferred

Legal Issues

  1. 1 Whether the defendant breached the main and ancillary agreements by delivering a vehicle not conforming to the invoice description.
  2. 2 Whether the defendant is liable to indemnify the plaintiff for losses resulting from breach of warranty.
  3. 3 Whether the contractual indemnity clause applies despite alleged oral instructions to vary the agreement.

Ratio Decidendi

The court found that the defendant breached clauses 3 and 6 of the main agreement by delivering a vehicle that did not conform to the description and specification in the invoice. The evidence established that the defendant knowingly described the vehicle as an SL55 AMG, despite it being an S55 AMG, and that this misdescription was material. Clause 18 of the agreement required any variation to be in writing, and no evidence was presented that the parties agreed to vary this clause or the description in writing. The defendant's reliance on oral instructions from the plaintiff's employee was rejected, as such instructions could not override the written contract. The indemnity clause in the...

Court Disposition

Defendant found liable for damages consequent to breach of warranty; quantum to be determined.

Orders

  • The defendant is liable to pay to the plaintiff such damages as the plaintiff may prove to have suffered or incurred consequent to the breach of the warranty.
  • The defendant is directed to pay costs on the issue of liability.