GWB Concrete Walling CC and Others v CJB Concrete Walling CC and Others (2022-059229) [2024] ZAGPJHC 707 (6 August 2024)

GWB Concrete Walling CC and Others v CJB Concrete Walling CC and Others (2022-059229) [2024] ZAGPJHC 707 (6 August 2024)

The court held that, at the exception stage, it must accept the plaintiffs' pleaded facts as true. The memorandum of understanding and co-existence agreement, as pleaded, are sufficient to disclose a cause of action, regardless of factual disputes about their validity or signature. The alternative basis for declaratory relief, premised on use and reputation in the trade marks, further supports the plaintiffs' claims. The exceptions raised by the defendants are over-technical and do not demonstrate that, upon any construction of the particulars of claim, no cause of action is disclosed. Accordingly, all exceptions are dismissed, and costs are awarded to the plaintiffs.

Citation
[2024] ZAGPJHC 707
Parties
Plaintiff: GWB Concrete Walling CC; Plaintiff: East Rand Walling (Pty) Limited; Plaintiff: Garth William Barnard; Defendant: CJB Concrete Walling CC; Defendant: Emalini Enterprises 147 (Pty) Limited; Defendant: East Rand Concrete Walling (Pty) Limited; Defendant: Clive James Barnard; Defendant: Clinton Clive Barnard; Defendant: Yvonne Florence Barnard; Defendant: Michael Frederick Barnard; Defendant: Registrar of Trademarks
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 August 2024
Case Number
2022-059229
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exceptions dismissed with costs awarded to the plaintiffs.
Judges
Adams
Legal Topics
Exceptions to Pleadings, Trade Mark Infringement, Co Existence Agreement, Contract Interpretation, Declaratory Relief, Costs Award
Civil Procedure Commercial and Corporate Intellectual Property Exceptions to Pleadings Trade Mark Infringement Co Existence Agreement Contract Interpretation Declaratory Relief +1 more

Case Brief

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Parties

GWB Concrete Walling CC

Plaintiff

East Rand Walling (Pty) Limited

Plaintiff

Garth William Barnard

Plaintiff

CJB Concrete Walling CC

Defendant

Emalini Enterprises 147 (Pty) Limited

Defendant

East Rand Concrete Walling (Pty) Limited

Defendant

Clive James Barnard

Defendant

Clinton Clive Barnard

Defendant

Yvonne Florence Barnard

Defendant

Michael Frederick Barnard

Defendant

Registrar of Trademarks

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' amended particulars of claim disclose a cause of action against the defendants.
  2. 2 Whether the memorandum of understanding and co-existence agreement are binding and enforceable.
  3. 3 Whether the assignment of trade marks without consent constitutes a breach of the co-existence agreement.

Ratio Decidendi

The court held that, at the exception stage, it must accept the plaintiffs' pleaded facts as true. The memorandum of understanding and co-existence agreement, as pleaded, are sufficient to disclose a cause of action, regardless of factual disputes about their validity or signature. The alternative basis for declaratory relief, premised on use and reputation in the trade marks, further supports the plaintiffs' claims. The exceptions raised by the defendants are over-technical and do not demonstrate that, upon any construction of the particulars of claim, no cause of action is disclosed. Accordingly, all exceptions are dismissed, and costs are awarded to the plaintiffs.

Court Disposition

Exceptions dismissed with costs awarded to the plaintiffs.

Orders

  • The first to fifth defendants’ exceptions to the plaintiffs’ amended particulars of claim are dismissed with costs.
  • The first, second, third, fourth and fifth defendants, jointly and severally, the one paying the other to be absolved, shall pay the plaintiffs’ costs of the exceptions and the application to except, including the costs consequent upon the employment of two Counsel, one being Senior Counsel.