Furman and Another v Batha (10044/07) [2010] ZAGPJHC 85 (23 September 2010)

Furman and Another v Batha (10044/07) [2010] ZAGPJHC 85 (23 September 2010)

The court found that the plaintiffs were entitled to indemnification from the defendant under clause 9 of the sale agreement. The defendant was aware of the agent's claim and the litigation, participated in consultations, and was given ample opportunity to intervene or take over the defence but chose not to do so. The plaintiffs conducted a reasonable defence, and the defendant was bound by the outcome of the Magistrate's Court action. The evidence established that the estate agent was the effective cause of the sale, as the defendant attended the show day at the agent's invitation and concealed her dealings with the agent from the plaintiffs. The defendant's evidence was found to be...

Citation
[2010] ZAGPJHC 85
Parties
Plaintiff: Ashley Furman; Plaintiff: Belinda Furman (formerly Fawell); Defendant: Peta (Kim) Batha
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 September 2010
Case Number
10044/07
Procedural Posture
Civil Trial / First Instance
Outcome
Plaintiffs' claim for indemnification against the defendant is upheld.
Judges
C G Lamont
Legal Topics
Indemnity Clause, Estate Agent Commission, Effective Cause of Sale, Warranty Against Eviction
Land and Property Civil Procedure Indemnity Clause Estate Agent Commission Effective Cause of Sale Warranty Against Eviction

Case Brief

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Parties

Ashley Furman

Plaintiff

Belinda Furman (formerly Fawell)

Plaintiff

Peta (Kim) Batha

Defendant

Procedural Posture

Civil Trial / First Instance

Legal Issues

  1. 1 Whether the plaintiffs are entitled to indemnification from the defendant under clause 9 of the sale agreement after judgment was granted against them for estate agent's commission.
  2. 2 Whether the plaintiffs' conduct in defending the agent's claim was reasonable and sufficient to bind the defendant to indemnify them.
  3. 3 Whether the estate agent was the effective cause of the sale of the property to the defendant.

Ratio Decidendi

The court found that the plaintiffs were entitled to indemnification from the defendant under clause 9 of the sale agreement. The defendant was aware of the agent's claim and the litigation, participated in consultations, and was given ample opportunity to intervene or take over the defence but chose not to do so. The plaintiffs conducted a reasonable defence, and the defendant was bound by the outcome of the Magistrate's Court action. The evidence established that the estate agent was the effective cause of the sale, as the defendant attended the show day at the agent's invitation and concealed her dealings with the agent from the plaintiffs. The defendant's evidence was found to be...

Court Disposition

Plaintiffs' claim for indemnification against the defendant is upheld.

Orders

  • The defendant is directed to pay to the plaintiffs jointly and severally the sum of R131 056,00.
  • Interest on the sum of R131 056,00 at the rate of 15,5% per annum from 6 April 2007 to date of payment.