Hubbard v Mostert (A178/09) [2009] ZAWCHC 162; 2010 (2) SA 391 (WCC) (3 November 2009)

Hubbard v Mostert (A178/09) [2009] ZAWCHC 162; 2010 (2) SA 391 (WCC) (3 November 2009)

The court found that the cheque tendered by the appellant and accepted by the respondent did not constitute a compromise of all claims arising from both building contracts. The offer of compromise was ambiguous and, applying the contra preferentem rule, was interpreted as settling only the claim arising from the first contract. The respondent was entitled to accept the cheque in full and final payment of the first contract but not the extras under the second contract. The appellant failed to discharge the onus of proving that the compromise extended to both contracts. The settlement agreement subsequently concluded between the parties and made an order of court covered the claim for...

Citation
[2009] ZAWCHC 162
Parties
Appellant: Christopher James Blair Hubbard; Respondent: Gert Mostert
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 November 2009
Case Number
A178/09
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court; Application for Condonation and Reinstatement of Appeal
Outcome
The appeal is upheld in part; the special plea is upheld only insofar as the claim arising from the first contract has been compromised. The judgment granted in terms of the settlement agreement is confirmed. Condonation is granted for the late lodging of the appeal record. Costs orders are made as specified.
Judges
E Moosa, K E Matojane
Legal Topics
Compromise and Settlement, Building Contract Dispute, Onus of Proof, Offer and Acceptance, Condonation of Late Appeal
Civil Procedure Commercial and Corporate Compromise and Settlement Building Contract Dispute Onus of Proof Offer and Acceptance Condonation of Late Appeal

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Christopher James Blair Hubbard

Appellant

Gert Mostert

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court; Application for Condonation and Reinstatement of Appeal

Legal Issues

  1. 1 Whether the tender and acceptance of a cheque 'in full and final payment' constituted a compromise of the plaintiff's claim.
  2. 2 Whether the compromise applied to claims arising from both the first and second building contracts.
  3. 3 Whether condonation for the late lodging of the appeal record should be granted.

Ratio Decidendi

The court found that the cheque tendered by the appellant and accepted by the respondent did not constitute a compromise of all claims arising from both building contracts. The offer of compromise was ambiguous and, applying the contra preferentem rule, was interpreted as settling only the claim arising from the first contract. The respondent was entitled to accept the cheque in full and final payment of the first contract but not the extras under the second contract. The appellant failed to discharge the onus of proving that the compromise extended to both contracts. The settlement agreement subsequently concluded between the parties and made an order of court covered the claim for...

Court Disposition

The appeal is upheld in part; the special plea is upheld only insofar as the claim arising from the first contract has been compromised. The judgment granted in terms of the settlement agreement is confirmed. Condonation is granted for the late lodging of the appeal record. Costs orders are made as specified.

Orders

  • The special plea is upheld insofar as the claim arising from the first contract has been compromised by payment of the cheque dated 18 November 2005 in the sum of R26 171,64.
  • The judgment granted by the court a quo in terms of the settlement agreement is confirmed.