Howell and Another v ABSA Bank Limited (Application for Leave to Appeal) (16168/2017) [2020] ZAGPJHC 450 (1 October 2020)

Howell and Another v ABSA Bank Limited (Application for Leave to Appeal) (16168/2017) [2020] ZAGPJHC 450 (1 October 2020)

The application for leave to appeal was delivered out of time and was not accompanied by a condonation application. The grounds of appeal largely related to a previous order not before the Court. The only relevant grounds concerned the inclusion of the reserve price in the conditions of sale and the accuracy of the property description. The Court found that the respondent could not have included the reserve price in the conditions of sale as it had not yet been determined, and that the December 2018 order itself set the reserve price. The property description was found to be accurate and consistent with the mortgage bond. No reasonable prospect of success or compelling reason to grant...

Citation
[2020] ZAGPJHC 450
Parties
Applicant: Phillip Marshall Howell; Applicant: Noelene Jane Howell; Respondent: ABSA Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 October 2020
Case Number
16168/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Order Dated 13 December 2018
Outcome
Application for leave to appeal dismissed with costs.
Judges
Cowena
Legal Topics
Leave to Appeal, Sale in Execution, Reserve Price, Condonation, Costs Order
Civil Procedure Land and Property Leave to Appeal Sale in Execution Reserve Price Condonation Costs Order

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Parties

Phillip Marshall Howell

Applicant

Noelene Jane Howell

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Order Dated 13 December 2018

Legal Issues

  1. 1 Whether leave to appeal should be granted against the December 2018 order setting a reserve price for sale in execution.
  2. 2 Whether the grounds of appeal relating to the September 2017 order are relevant to the present application.
  3. 3 Whether the respondent was obliged to include the reserve price in the conditions of sale.

Ratio Decidendi

The application for leave to appeal was delivered out of time and was not accompanied by a condonation application. The grounds of appeal largely related to a previous order not before the Court. The only relevant grounds concerned the inclusion of the reserve price in the conditions of sale and the accuracy of the property description. The Court found that the respondent could not have included the reserve price in the conditions of sale as it had not yet been determined, and that the December 2018 order itself set the reserve price. The property description was found to be accurate and consistent with the mortgage bond. No reasonable prospect of success or compelling reason to grant...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicants for leave to appeal are ordered, jointly and severally, to pay the respondent's costs on a party and party scale.