Imperial Crown Trading 248 (Pty) Ltd v Investec Private Bank Limited (2013/1853) [2015] ZAGPPHC 544 (30 July 2015)

Imperial Crown Trading 248 (Pty) Ltd v Investec Private Bank Limited (2013/1853) [2015] ZAGPPHC 544 (30 July 2015)

The court found that none of the imperfections in the notice of set down, either alone or in combination, rendered the judgment erroneously sought or granted under Uniform Rule 42(1)(a). The applicant's explanation for default, while not ideal, was sufficient when considered with the existence of far-reaching disputes of fact and the defence raised regarding the alleged sham agreement and contravention of section 38 of the Companies Act. The applicant did enough to raise a bona fide defence with some prospect of success, justifying rescission of the default judgment. The opposition to the application was not unreasonable, and each party was ordered to pay its own costs.

Citation
[2015] ZAGPPHC 544
Parties
Applicant: Imperial Crown Trading 248 (Pty) Ltd; Respondent: Investec Private Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 July 2015
Case Number
2013/1853
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Default judgment against the applicant is rescinded. Each party to pay its own costs.
Judges
Wright
Legal Topics
Rescission of Judgment, Uniform Rule 42, Default Judgment, Bona Fide Defence
Civil Procedure Rescission of Judgment Uniform Rule 42 Default Judgment Bona Fide Defence

Case Brief

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Parties

Imperial Crown Trading 248 (Pty) Ltd

Applicant

Investec Private Bank Limited

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted against the applicant was erroneously sought or granted within the meaning of Uniform Rule 42(1)(a).
  2. 2 Whether the applicant has shown sufficient cause for rescission of the default judgment under common law principles.
  3. 3 Whether the applicant has raised a bona fide defence with some prospect of success.

Ratio Decidendi

The court found that none of the imperfections in the notice of set down, either alone or in combination, rendered the judgment erroneously sought or granted under Uniform Rule 42(1)(a). The applicant's explanation for default, while not ideal, was sufficient when considered with the existence of far-reaching disputes of fact and the defence raised regarding the alleged sham agreement and contravention of section 38 of the Companies Act. The applicant did enough to raise a bona fide defence with some prospect of success, justifying rescission of the default judgment. The opposition to the application was not unreasonable, and each party was ordered to pay its own costs.

Court Disposition

Default judgment against the applicant is rescinded. Each party to pay its own costs.

Orders

  • The application by the respondent to strike out is dismissed. Each party shall pay its own costs.
  • The default judgment granted against the applicant (fifth respondent in the main application) is rescinded. Each party shall pay its own costs.