Gower and Another v Tol and Others (4236/2014) [2017] ZAECGHC 10 (1 February 2017)

Gower and Another v Tol and Others (4236/2014) [2017] ZAECGHC 10 (1 February 2017)

The court held that costs should follow the result for each distinct claim rather than awarding an arbitrary percentage of total costs. The approach adopted in Golding was preferred, as it allows the taxing master to accurately calculate costs attributable to each claim. The plaintiffs must pay the defendants' costs for the withdrawn Will claim, and the defendants must pay the plaintiffs' costs for the successful improvements claim. The amended settlement agreement between the plaintiffs and the first and seventh defendants was made an order of court.

Citation
[2017] ZAECGHC 10
Parties
Plaintiff: Gavin Neil Gower; Plaintiff: Ellaleen Ingrid Gower; Defendant: Carol Anne Tol; Defendant: Carol Anne Tol N.O.; Defendant: Leonard Douglas Robert Gower; Defendant: Neil Byron Gower; Defendant: Patricia Olive Gower-Kotze; Defendant: Felicity June Gower; Defendant: Lyle Brett-Andrew Tol; Defendant: Crystalle-Leigh Tol; Defendant: Nongancingi Sikoti; Defendant: Master of the High Court of South Africa, Eastern Cape Division Grahamstown
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 February 2017
Case Number
4236/2014
Procedural Posture
Civil Action / Post Settlement; Determination of Costs
Outcome
The amended agreement between the plaintiffs and the first and seventh defendants is made an order of court. Costs are apportioned according to the result of each claim.
Judges
M Makaula
Legal Topics
Costs Apportionment, Withdrawal of Claim, Compensation for Improvements, Will Dispute
Civil Procedure Land and Property Costs Apportionment Withdrawal of Claim Compensation for Improvements Will Dispute

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Parties

Gavin Neil Gower

Plaintiff

Ellaleen Ingrid Gower

Plaintiff

Carol Anne Tol

Defendant

Carol Anne Tol N.O.

Defendant

Leonard Douglas Robert Gower

Defendant

Neil Byron Gower

Defendant

Patricia Olive Gower-Kotze

Defendant

Felicity June Gower

Defendant

Lyle Brett-Andrew Tol

Defendant

Crystalle-Leigh Tol

Defendant

Nongancingi Sikoti

Defendant

Master of the High Court of South Africa, Eastern Cape Division Grahamstown

Defendant

Procedural Posture

Civil Action / Post Settlement; Determination of Costs

Legal Issues

  1. 1 How should costs be apportioned between the parties following partial settlement and withdrawal of one claim.
  2. 2 Should costs be awarded as a percentage of total costs or should costs follow the result for each distinct claim.

Ratio Decidendi

The court held that costs should follow the result for each distinct claim rather than awarding an arbitrary percentage of total costs. The approach adopted in Golding was preferred, as it allows the taxing master to accurately calculate costs attributable to each claim. The plaintiffs must pay the defendants' costs for the withdrawn Will claim, and the defendants must pay the plaintiffs' costs for the successful improvements claim. The amended settlement agreement between the plaintiffs and the first and seventh defendants was made an order of court.

Court Disposition

The amended agreement between the plaintiffs and the first and seventh defendants is made an order of court. Costs are apportioned according to the result of each claim.

Orders

  • The amended agreement concluded between the plaintiffs and the first and seventh defendant is made an order of court.
  • The plaintiffs are to pay the taxed or agreed costs of the first and seventh defendants in respect of the withdrawn claim to declare the Will to be null and void, jointly and severally, one paying the other to be absolved.