Hill v Mackay and Others (1242/13) [2013] ZAKZDHC 35 (11 July 2013)

Hill v Mackay and Others (1242/13) [2013] ZAKZDHC 35 (11 July 2013)

The Court found that Clause 2.10 of the settlement agreement must be interpreted sensibly and in context, granting the Applicants the right to enforce the sale of Real Right 10 on terms they stipulate, and to appropriate the proceeds to the arbitration award debt. The Respondents' interpretation was rejected as insensible and contrary to the agreement's wording and purpose. The defence of lis pendens was technically met but, in the exercise of judicial discretion, the application was allowed to proceed due to the absence of material dispute, delays in trial, and the Respondents' conduct in frustrating the sale. The Sheriff need not be joined as a party, as he has no interest in the...

Citation
[2013] ZAKZDHC 35
Parties
Applicant: Selad Cowies Hill; Respondent: Brian Murray Mackay; Respondent: Vision Homes Cowies Hill (Pty) Ltd; Respondent: Petrus Johannes Schoerie and Others NNO
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
11 July 2013
Case Number
1242/13
Procedural Posture
Urgent Application / Application for Enforcement of Arbitration Award and Sale of Property
Outcome
Application granted in favour of the Applicants.
Judges
Kruger
Legal Topics
Specific Performance, Arbitration Award Enforcement, Contract Interpretation, Sale of Immovable Property
Civil Procedure Commercial and Corporate Specific Performance Arbitration Award Enforcement Contract Interpretation Sale of Immovable Property

Case Brief

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Parties

Selad Cowies Hill

Applicant

Brian Murray Mackay

Respondent

Vision Homes Cowies Hill (Pty) Ltd

Respondent

Petrus Johannes Schoerie and Others NNO

Respondent

Procedural Posture

Urgent Application / Application for Enforcement of Arbitration Award and Sale of Property

Legal Issues

  1. 1 What is the correct interpretation of Clause 2.10 of the settlement agreement regarding the sale of Real Right 10.
  2. 2 Whether the application is barred by lis pendens due to pending litigation in the Pietermaritzburg High Court.
  3. 3 Whether the Sheriff must be joined as a party to the proceedings.

Ratio Decidendi

The Court found that Clause 2.10 of the settlement agreement must be interpreted sensibly and in context, granting the Applicants the right to enforce the sale of Real Right 10 on terms they stipulate, and to appropriate the proceeds to the arbitration award debt. The Respondents' interpretation was rejected as insensible and contrary to the agreement's wording and purpose. The defence of lis pendens was technically met but, in the exercise of judicial discretion, the application was allowed to proceed due to the absence of material dispute, delays in trial, and the Respondents' conduct in frustrating the sale. The Sheriff need not be joined as a party, as he has no interest in the...

Court Disposition

Application granted in favour of the Applicants.

Orders

  • Real Right 10 in Belvedale Wood shall be sold by the Sheriff on terms stipulated by the Applicants, by accepting and signing any written offer to purchase placed before the Sheriff, failing which, by public auction within thirty days.
  • The Sheriff is authorised and directed to carry out the sale and to sign all documents and do all things necessary for the sale and transfer.