Investec Bank Ltd v McCreedy (48731/10) [2011] ZAGPJHC 112 (17 August 2011)

Investec Bank Ltd v McCreedy (48731/10) [2011] ZAGPJHC 112 (17 August 2011)

The court held that the respondent's liability under the suretyship agreement is triggered by the liquidation of the principal debtor, Greenglades Properties (Pty) Limited. The moratorium relied upon by the respondent does not survive the liquidation, and both parties agreed that liability would arise if liquidation...

Source-derived case information.

Citation
[2011] ZAGPJHC 112
Parties
Applicant: Investec Bank Limited; Respondent: Mark William McCreedy; Respondent: T M Greeff
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 August 2011
Case Number
48731/10
Procedural Posture
Civil Application / Judgment
Outcome
Judgment granted in favour of the applicant for the claimed amount and interest, with execution stayed pending the outcome of the application for leave to appeal against the liquidation order.
Judges
Willis
Legal Topics
Suretyship Liability, Rectification of Contract, Stay of Execution
Commercial and Corporate Suretyship Liability Rectification of Contract Stay of Execution

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Summary, issues, holding and outcome

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Parties

Investec Bank Limited

Applicant

Mark William McCreedy

Respondent

T M Greeff

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the respondent is liable under the suretyship agreement for the debts of Greenglades Properties (Pty) Limited.
  2. 2 Whether the moratorium agreed between the applicant and the principal debtor survives the liquidation of the principal debtor.
  3. 3 Whether the handwritten clause in the agreement constitutes a rectification affecting the respondent's liability.

Ratio Decidendi

The court held that the respondent's liability under the suretyship agreement is triggered by the liquidation of the principal debtor, Greenglades Properties (Pty) Limited. The moratorium relied upon by the respondent does not survive the liquidation, and both parties agreed that liability would arise if liquidation was correctly ordered. The handwritten clause in the agreement does not amount to rectification but merely envisages a possible future review, which was never agreed to in writing. There is no binding variation or rectification affecting the respondent's liability. The court granted judgment in favour of the applicant for the claimed amount and interest, but stayed execution...

Court Disposition

Judgment granted in favour of the applicant for the claimed amount and interest, with execution stayed pending the outcome of the application for leave to appeal against the liquidation order.

Orders

  • Judgment is granted in favour of the applicant in terms of prayers 1 and 2 of the Notice of Motion dated 1 December 2010.
  • Execution of this order is stayed pending the outcome of the application for leave to appeal in the judgment of Blieden J, given in the matter of Investec Bank Limited and Greenglades Properties (Pty) Limited (Case number JG/32080), on 29 October 2010.