Hill and Another v Magnolia Ridge Properties (Pty) Ltd and Another (14030/08) [2009] ZAKZDHC 5 (1 April 2009)

Hill and Another v Magnolia Ridge Properties (Pty) Ltd and Another (14030/08) [2009] ZAKZDHC 5 (1 April 2009)

The court held that the applicants' interpretation of clause 4.2.2 was erroneous. The relevant date for determining the right to resile from the contract was the date of possession, not the fixed date of 31 August 2007. The contract, when read as a whole, indicated that beneficial occupation could only be given after completion of the building, and the date of possession was to follow within thirty days of completion. The applicants failed to establish a prima facie right to the relief sought, and there was no evidence of a real risk that the first respondent would be unable to refund the deposit if required. The balance of convenience did not favour the applicants, and the application...

Citation
[2009] ZAKZDHC 5
Parties
Applicant: Anthony Howard Sargeant Hill; Applicant: Steven John Hean; Respondent: Magnolia Ridge Properties (Pty) Ltd; Respondent: M P Lutge Inc.
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
1 April 2009
Case Number
14030/08
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Action for Repayment of Deposit
Outcome
Application dismissed with costs.
Judges
Wallis
Legal Topics
Interim Interdict, Contractual Construction, Deposit Refund, Sectional Title Development
Civil Procedure Land and Property Interim Interdict Contractual Construction Deposit Refund Sectional Title Development

Case Brief

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Parties

Anthony Howard Sargeant Hill

Applicant

Steven John Hean

Applicant

Magnolia Ridge Properties (Pty) Ltd

Respondent

M P Lutge Inc.

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Action for Repayment of Deposit

Legal Issues

  1. 1 Whether the applicants were entitled to resile from the contract under clause 4.2.2 of the Conditions of Sale.
  2. 2 Whether the applicants are entitled to an interim interdict preventing payment of the deposit to the first respondent pending action.
  3. 3 Whether the balance of convenience favours the grant of the interim interdict.

Ratio Decidendi

The court held that the applicants' interpretation of clause 4.2.2 was erroneous. The relevant date for determining the right to resile from the contract was the date of possession, not the fixed date of 31 August 2007. The contract, when read as a whole, indicated that beneficial occupation could only be given after completion of the building, and the date of possession was to follow within thirty days of completion. The applicants failed to establish a prima facie right to the relief sought, and there was no evidence of a real risk that the first respondent would be unable to refund the deposit if required. The balance of convenience did not favour the applicants, and the application...

Court Disposition

Application dismissed with costs.

Orders

  • The application for an interim interdict is dismissed.
  • The applicants are ordered to pay the costs of the application.