Fourie NO and Another v Victor NO and Another () [2011] ZAFSHC 32 (17 February 2011)

Fourie NO and Another v Victor NO and Another () [2011] ZAFSHC 32 (17 February 2011)

The court held that the taxing master did not properly exercise his discretion in allowing a full day retention fee as wasted costs in the circumstances of this application. Given that the sequestration application was not voluminous and the advocate could have handled a second opposed motion on the same day, a full day fee was excessive. The court found that only half of the day fee should have been allowed, and the allocation should be reduced accordingly. The review application succeeded partially, and no costs order was made due to the partial success and the late filing of the application, for which condonation was granted.

Citation
[2011] ZAFSHC 32
Parties
Applicant: Johannes Gerhardus Fourie N.O.; Applicant: Valerie Hope Holdsworth N.O.; Respondent: Cornelia Johanna Victor N.O.; Respondent: Nicolaas Albertus Kotze N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
5787/2008
Procedural Posture
Review Application / Judgment
Outcome
The review application succeeds partially. The taxing master's allocator is set aside and the matter is referred back for adjustment in accordance with the judgment.
Judges
A.F. Jordaan, R
Legal Topics
Taxation of Costs, Review of Taxing Master, Retention Fee, Discretion of Taxing Master
Civil Procedure Taxation of Costs Review of Taxing Master Retention Fee Discretion of Taxing Master

Case Brief

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Parties

Johannes Gerhardus Fourie N.O.

Applicant

Valerie Hope Holdsworth N.O.

Applicant

Cornelia Johanna Victor N.O.

Respondent

Nicolaas Albertus Kotze N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the taxing master exercised his discretion correctly in allowing a full day retention fee as wasted costs.
  2. 2 Whether a retention fee is reasonable and permissible in application proceedings under the court rules.
  3. 3 Whether the review application was timeously brought and if condonation should be granted.

Ratio Decidendi

The court held that the taxing master did not properly exercise his discretion in allowing a full day retention fee as wasted costs in the circumstances of this application. Given that the sequestration application was not voluminous and the advocate could have handled a second opposed motion on the same day, a full day fee was excessive. The court found that only half of the day fee should have been allowed, and the allocation should be reduced accordingly. The review application succeeded partially, and no costs order was made due to the partial success and the late filing of the application, for which condonation was granted.

Court Disposition

The review application succeeds partially. The taxing master's allocator is set aside and the matter is referred back for adjustment in accordance with the judgment.

Orders

  • The allocator of the taxing master is set aside.
  • The matter is referred back to the taxing master to adjust the allocator in accordance with the guidelines set out in this judgment.