Fishof 1207 CC v Rapiddough Properties 459 CC (8763/07) [2010] ZAWCHC 534 (8 November 2010)
- Citation
- [2010] ZAWCHC 534
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Western Cape High Court, Cape Town
- Panel
- Veldhuizen
- Case number
- 8763/07
More details
- Court
- Western Cape High Court, Cape Town
- Panel
- Veldhuizen
- Case number
- 8763/07
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the Plaintiff, operating under the trade name Fine and Country, was entitled to claim commission as principal under the exclusive mandate. The Defendant sold the properties during the mandate period, and the agreement stipulated a commission of 7.5% plus VAT. The absence of the Plaintiff's name in the mandate did not preclude its claim, as it was the principal in the franchise arrangement. The Defendant's argument regarding effective cause failed, as the law provides that commission is payable when the sale occurs during the exclusive mandate period, regardless of who effects the sale. The Plaintiff proved its case on a balance of probabilities and was entitled to the claimed commission, VAT, interest, and costs, including wasted costs from the unsuccessful postponement application.
Court disposition
Plaintiff's claim for commission succeeded; Defendant ordered to pay commission, VAT, interest, and costs.
Orders
- The Defendant is ordered to pay the sum of R300,000 plus VAT to the Plaintiff.
- The Defendant is ordered to pay interest on the sum of R300,000 a tempore morae to date of payment.
- The Defendant is ordered to pay the costs of the action, including the wasted costs of the two days spent on the application for postponement.
- The costs include the qualifying fees of the Plaintiff's expert witnesses.
02
Material facts
Parties
Fishof 1207 CC
PlaintiffRapiddough Properties 459 CC
Defendant Counsel: Peter FordAmounts and remedies
- Commission Awarded: ZAR 300,000
03
Procedural history
Posture
Civil Trial / Final Judgment
04
Questions and positions
Legal issues
- 01
Whether the Plaintiff is entitled to commission on the sale of two properties under an exclusive mandate.
- 02
Whether the absence of the Plaintiff's name in the mandate precludes it from claiming commission.
- 03
Whether the Defendant's direct sale of the properties during the mandate period affects commission liability.
Party arguments
- Applicant
- The Plaintiff argued that it operated under the trade name Fine and Country and was the principal entitled to sue for commission under the exclusive mandate. It contended that the Defendant sold the properties during the operative period of the mandate and, according to the agreement, was liable for commission at 7.5% plus VAT. The Plaintiff maintained that the absence of its name in the mandate did not bar its claim, as it was the principal in the franchise arrangement.
- Respondent
- The Defendant, represented by Mr Peter Ford, argued that the mandate did not contain the Plaintiff's name and therefore the Plaintiff could not claim commission. The Defendant further contended that the Plaintiff was not the effective cause of the sale and that nothing in the agreement prevented the Defendant from marketing and selling the properties itself, thus negating any commission liability.
05
Court’s reasoning
Legal principles
- 01
Trite law; not specifically cited
A principal may sue for commission even if its name does not appear in the mandate, provided it operated under the relevant trade name.
- 02
Trite law; not specifically cited
Where an exclusive mandate is operative, the principal is entitled to commission if the property is sold during the mandate period, even if the seller effects the sale directly.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the Plaintiff, operating under the trade name Fine and Country, was entitled to claim commission as principal under the exclusive mandate. The Defendant sold the properties during the mandate period, and the agreement stipulated a commission of 7.5% plus VAT. The absence of the Plaintiff's name in the mandate did not preclude its claim, as it was the principal in the franchise arrangement. The Defendant's argument regarding effective cause failed, as the law provides that commission is payable when the sale occurs during the exclusive mandate period, regardless of who effects the sale. The Plaintiff proved its case on a balance of probabilities and was entitled to the claimed commission, VAT, interest, and costs, including wasted costs from the unsuccessful postponement application.
Obiter and limits
- The court noted that applications for postponement should not be made without merit, and wasted costs will be awarded where such applications unnecessarily delay proceedings.
Court disposition
Plaintiff's claim for commission succeeded; Defendant ordered to pay commission, VAT, interest, and costs.
- The Defendant is ordered to pay the sum of R300,000 plus VAT to the Plaintiff.
- The Defendant is ordered to pay interest on the sum of R300,000 a tempore morae to date of payment.
- The Defendant is ordered to pay the costs of the action, including the wasted costs of the two days spent on the application for postponement.
- The costs include the qualifying fees of the Plaintiff's expert witnesses.
Source and reliance status
Western Cape High Court, Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Western Cape High Court, Cape Town
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: 8763/07
DATE: 8 November 2010
In the matter between:
FISHOF 1207 CC …...............................................................................................Plaintiffand
RAPIDOUGH PROPERTIES 459 CC …..............................................................Defendant
JUDGMENT
VELDHUIZEN, J
Plaintiff sues the Defendant for the payment of commission on the sale of two properties. It appears from the pleadings that it is common cause that the Defendant on the 17 March 2007 granted an exclusive mandate to Fine and Country. The evidence before me shows that Fine and Country was a trade name under which the Plaintiff in terms of a franchise agreement did business as estate agents in real estate. It is common cause on the pleadings that the Defendant during the period of which the exclusive mandate was operative itself sold the properties for the amounts of R1.8 million and R2.2 million respectively.
Mr Peter Ford, whom I allowed to appear before me on behalf of the Defendant, raised various points, to be more specific, really only two. The first being that the mandate nowhere contains the name of the Plaintiff Fishof 1207 CC. As I mentioned, this should not stand in the way of the Plaintiff coming forward as the principal and suing the Defendant. It is trite law that the second point taken by the Defendant cannot succeed, that being that the Plaintiff was not the effective cause of the sale of the properties and that there was nothing in the agreement precluding the Defendant from marketing the property itself and itself concluding the binding sale therefore. It is true they may well do that, there is nothing to preclude them from doing that, but it is trite law that in the circumstances they will be liable for commission if they conclude such a sale during the period which the exclusive mandate was operative. That is exactly what happened here and on the evidence before me, I can see no reason why the Plaintiff should not succeed.
In my view they have, on a balance of probabilities proved their case and they are entitled to the commission set out in the agreement of 7.5% on the sale of the properties. The agreement also allows for value added tax to be added to the commission and, in my view, they would also be entitled to that.
Mr Ford on two days last week and the week before applied for the matter to be postponed and after hearing him, I last Friday refused the application for postponement and ordered that costs for the two wasted days in dealing with the application for postponement would stand over for later determination. It is clear to me that there was no merit in the application and that the Plaintiffs are entitled to their costs of the two days wasted. In the circumstances, it is my judgment that:
1. The Defendant be ordered to pay the sum of R300 000 plus VAT to the Plaintiff.
2. Defendant is further ordered to pay interest on the sum of R300 000 a tempore morae to date of payment.
3. And lastly, Defendant is ordered to pay the costs of the action including the wasted costs of the two days spent in the application
for postponement.
4. The costs include the qualifying fees of the Plaintiff's
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.