Hutchings v Hutchings (15633/2019) [2021] ZAWCHC 3 (18 January 2021)

Hutchings v Hutchings (15633/2019) [2021] ZAWCHC 3 (18 January 2021)

The court held that the respondent's argument that the applicant's right to have the arbitration award made an order of court has prescribed is incorrect. The claim to make the award an order of court is not a 'debt' under the Prescription Act, and prescription only commences when the costs are agreed or taxed. The respondent's reliance on prescription is misconstrued, as prevailing precedent establishes that costs become due only upon agreement or taxation. Therefore, the applicant's application succeeds, and the arbitration award is made an order of court.

Citation
[2021] ZAWCHC 3
Parties
Applicant: Hugh Hutchings; Respondent: Anna Catherina Hutchings
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 January 2021
Case Number
15633/2019
Procedural Posture
Application to Make Arbitration Award Order of Court / Final Determination
Outcome
Application granted; arbitration award made an order of court; costs awarded to applicant.
Judges
S Hockey
Legal Topics
Arbitration Award Enforcement, Prescription Act, Costs Taxation, Section 31 Arbitration Act
Civil Procedure Alternative Dispute Resolution Arbitration Award Enforcement Prescription Act Costs Taxation Section 31 Arbitration Act

Case Brief

Summary, issues, holding and outcome

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Parties

Hugh Hutchings

Applicant

Anna Catherina Hutchings

Respondent

Procedural Posture

Application to Make Arbitration Award Order of Court / Final Determination

Legal Issues

  1. 1 Whether the applicant's right to have the arbitration award made an order of court has prescribed under the Prescription Act.
  2. 2 Whether the costs awarded in the arbitration can be enforced before taxation or agreement on quantum.
  3. 3 Whether the respondent's opposition based on prescription is legally sustainable.

Ratio Decidendi

The court held that the respondent's argument that the applicant's right to have the arbitration award made an order of court has prescribed is incorrect. The claim to make the award an order of court is not a 'debt' under the Prescription Act, and prescription only commences when the costs are agreed or taxed. The respondent's reliance on prescription is misconstrued, as prevailing precedent establishes that costs become due only upon agreement or taxation. Therefore, the applicant's application succeeds, and the arbitration award is made an order of court.

Court Disposition

Application granted; arbitration award made an order of court; costs awarded to applicant.

Orders

  • The arbitration award dated 22 January 2014 is made an order of this court in terms of section 31(1) of the Arbitration Act, 1969.
  • The respondent is ordered to pay the applicant's costs of this application.