Graphic Laminates CC v Albar Distributors CC and Another (1921/03) [2005] ZAWCHC 32; 2005 (5) SA 409 (C) (5 May 2005)

Graphic Laminates CC v Albar Distributors CC and Another (1921/03) [2005] ZAWCHC 32; 2005 (5) SA 409 (C) (5 May 2005)

The court held that, in the absence of an order for costs in the winding-up application, the applicant is not liable for the first respondent's costs in respect of that application. The taxing master acted ultra vires in taxing those costs and issuing a writ of execution for them, rendering the writ invalid to that extent. The court further found that the facsimile relied upon by the applicant did not constitute an unequivocal admission of indebtedness by the first respondent, and thus set-off did not operate to extinguish the costs claims. The applicant was entitled to relief in respect of the invalid writ, but not in respect of set-off. The first respondent was ordered to pay 60% of the...

Citation
[2005] ZAWCHC 32
Parties
Applicant: Graphic Laminates CC; Respondent: Albar Distributors CC; Respondent: The Sheriff of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 May 2005
Case Number
1921/03
Procedural Posture
Stay Application / Application for Stay of Execution and Setting Aside of Writs
Outcome
Relief claimed in prayers 2.1 and 2.3 of the notice of motion is granted; relief claimed in prayer 2.2 is refused. The first respondent is ordered to pay 60% of the applicant's costs on a party and party scale.
Judges
D Van Reenen
Legal Topics
Stay of Execution, Costs Award, Set Off, Winding Up Application
Civil Procedure Stay of Execution Costs Award Set Off Winding Up Application

Case Brief

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Parties

Graphic Laminates CC

Applicant

Albar Distributors CC

Respondent

The Sheriff of Cape Town

Respondent

Procedural Posture

Stay Application / Application for Stay of Execution and Setting Aside of Writs

Legal Issues

  1. 1 Whether the applicant is liable for the first respondent's costs in the winding-up application where no costs order was made.
  2. 2 Whether the writ of execution issued for costs is valid in the absence of an underlying causa.
  3. 3 Whether set-off operates to extinguish the costs claims underlying the writs of execution.

Ratio Decidendi

The court held that, in the absence of an order for costs in the winding-up application, the applicant is not liable for the first respondent's costs in respect of that application. The taxing master acted ultra vires in taxing those costs and issuing a writ of execution for them, rendering the writ invalid to that extent. The court further found that the facsimile relied upon by the applicant did not constitute an unequivocal admission of indebtedness by the first respondent, and thus set-off did not operate to extinguish the costs claims. The applicant was entitled to relief in respect of the invalid writ, but not in respect of set-off. The first respondent was ordered to pay 60% of the...

Court Disposition

Relief claimed in prayers 2.1 and 2.3 of the notice of motion is granted; relief claimed in prayer 2.2 is refused. The first respondent is ordered to pay 60% of the applicant's costs on a party and party scale.

Orders

  • The sale in execution and the warrant of execution issued by the Registrar of this court under case no: 1921/2003 are stayed and set aside to the extent relating to the winding-up application.
  • The warrant of execution issued by the Registrar of the Supreme Court of Appeal under case no: 243/2003 is set aside as conceded by the first respondent.