Georgious N.O and Others v Freyssenet Posten (Pty) Ltd and Another (5406/2014) [2015] ZAFSHC 147 (6 August 2015)

Georgious N.O and Others v Freyssenet Posten (Pty) Ltd and Another (5406/2014) [2015] ZAFSHC 147 (6 August 2015)

The court found that the plaintiffs failed to plead sufficient material facts to establish a contractual nexus between themselves and the excipient. The first plaintiff's claim for specific performance and rectification was unsustainable due to the absence of a contract directly binding the excipient to the first plaintiff, and the lack of necessary design information in the pleadings. The second plaintiff's claim for damages was excluded by the terms of the lease agreement and failed for lack of privity of contract with the excipient. The principle of incorporation by reference did not operate to create contractual obligations in the absence of clear reference and contractual linkage....

Citation
[2015] ZAFSHC 147
Parties
Plaintiff: Nicolas Georgiou N.O; Plaintiff: Goergiou Nicolas N.O.; Plaintiff: Joseph Reynolds Chemaly N.O; Plaintiff: Loch Logan Waterfront (Pty) Ltd; Defendant: Freyssenet Posten (Pty) Ltd; Defendant: Murray & Roberts Construction (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 August 2015
Case Number
5406/2014
Procedural Posture
Civil Procedure / Exception to Particulars of Claim; Interlocutory Application
Outcome
Exception to both claims upheld; particulars of claim set aside with leave to amend.
Judges
Ebrahim
Legal Topics
Exception to Pleading, Contractual Privity, Specific Performance, Damages for Breach of Contract, Implied Terms, Building Contracts
Civil Procedure Commercial and Corporate Exception to Pleading Contractual Privity Specific Performance Damages for Breach of Contract Implied Terms Building Contracts

Case Brief

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Parties

Nicolas Georgiou N.O

Plaintiff

Goergiou Nicolas N.O.

Plaintiff

Joseph Reynolds Chemaly N.O

Plaintiff

Loch Logan Waterfront (Pty) Ltd

Plaintiff

Freyssenet Posten (Pty) Ltd

Defendant

Murray & Roberts Construction (Pty) Ltd

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim; Interlocutory Application

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action against the excipient for breach of contract.
  2. 2 Whether the plaintiffs have pleaded sufficient contractual nexus between themselves and the excipient.
  3. 3 Whether the claims for specific performance and damages are sustainable in law given the absence of privity of contract.

Ratio Decidendi

The court found that the plaintiffs failed to plead sufficient material facts to establish a contractual nexus between themselves and the excipient. The first plaintiff's claim for specific performance and rectification was unsustainable due to the absence of a contract directly binding the excipient to the first plaintiff, and the lack of necessary design information in the pleadings. The second plaintiff's claim for damages was excluded by the terms of the lease agreement and failed for lack of privity of contract with the excipient. The principle of incorporation by reference did not operate to create contractual obligations in the absence of clear reference and contractual linkage....

Court Disposition

Exception to both claims upheld; particulars of claim set aside with leave to amend.

Orders

  • The exception to both claims is upheld and the particulars of claim are set aside.
  • Exceptions not pursued before the court are dismissed.