Hodgkinson v K2011104122 (Pty) Ltd and Another (10019/2013) [2019] ZAWCHC 22; [2019] 2 All SA 754 (WCC) (5 March 2019)

Hodgkinson v K2011104122 (Pty) Ltd and Another (10019/2013) [2019] ZAWCHC 22; [2019] 2 All SA 754 (WCC) (5 March 2019)

The court held that the plaintiff, having invoked the lex commissoria in the first notice, was bound by that election and could not subsequently rely on repudiation as a ground for cancellation. The first notice conveyed mixed messages and did not clearly communicate an invitation to repent outside the contractual cancellation procedure. The Full Bench had not finally decided the issue of repudiation, but the plaintiff's attempt to introduce it now was untenable given the prior conduct and pleadings. The claim for post-cancellation damages based on mora was also unsustainable, as the contract specifically provided for liquidated damages for delay and required compliance with the lex...

Citation
[2019] ZAWCHC 22
Parties
Plaintiff: Peter Dayton Hodgkinson; Defendant: K2011104122 (Pty) Ltd; Defendant: Olga Cornelia Maria van der Weerd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 March 2019
Case Number
10019/2013
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim; Interlocutory Application
Outcome
Exceptions to the amendments to the particulars of claim are upheld with costs. Plaintiff granted leave to amend within 20 days.
Judges
H J De Waal
Legal Topics
Performance Guarantee, Repudiation, Lex Commissoria, Mora Damages, Interest Liability, Contractual Election
Commercial and Corporate Civil Procedure Performance Guarantee Repudiation Lex Commissoria Mora Damages Interest Liability Contractual Election

Case Brief

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Parties

Peter Dayton Hodgkinson

Plaintiff

K2011104122 (Pty) Ltd

Defendant

Olga Cornelia Maria van der Weerd

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim; Interlocutory Application

Legal Issues

  1. 1 Whether the plaintiff may rely on repudiation as a ground for cancellation despite having invoked the lex commissoria.
  2. 2 Whether the plaintiff's claim for post-cancellation damages based on mora is sustainable under the contract.
  3. 3 Whether the performance guarantee limits the second defendant's liability to R250,000, including interest.

Ratio Decidendi

The court held that the plaintiff, having invoked the lex commissoria in the first notice, was bound by that election and could not subsequently rely on repudiation as a ground for cancellation. The first notice conveyed mixed messages and did not clearly communicate an invitation to repent outside the contractual cancellation procedure. The Full Bench had not finally decided the issue of repudiation, but the plaintiff's attempt to introduce it now was untenable given the prior conduct and pleadings. The claim for post-cancellation damages based on mora was also unsustainable, as the contract specifically provided for liquidated damages for delay and required compliance with the lex...

Court Disposition

Exceptions to the amendments to the particulars of claim are upheld with costs. Plaintiff granted leave to amend within 20 days.

Orders

  • The exceptions against the amendments to paragraphs 20, 21 and 23 of the particulars of claim and the insertion of a new prayer 2 after the existing prayer 1 are upheld, with costs.
  • The plaintiff is granted leave to amend his particulars of claim within 20 days of the date of this order.