Killik v Investec Bank Ltd (261/12) [2012] ZAGPJHC 265 (30 August 2012)

Killik v Investec Bank Ltd (261/12) [2012] ZAGPJHC 265 (30 August 2012)

The court found that the applicant's attempt to withdraw the rescission application, despite a tender for costs, was an abuse of process intended to delay enforcement of a valid judgment. The affidavit relied upon by the applicant was found to be unreliable and did not implicate the respondent in any fraud. The court emphasized that the existence and authenticity of the loan agreements and the advancement of funds had never been disputed, and that the applicant had previously relied on the loan agreements to support his own claims. The court held that there was no basis for withdrawal or rescission, and that the applications constituted an abuse of court process. Accordingly, all...

Citation
[2012] ZAGPJHC 265
Parties
Applicant: Jonathan Molyne Killik; Respondent: Investec Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 August 2012
Case Number
261/12
Procedural Posture
Leave to Appeal / Application for Leave to Withdraw Rescission Application and Related Interlocutory Matters
Outcome
All applications by the applicant are dismissed with costs, including the costs of two counsel.
Judges
Willis
Legal Topics
Withdrawal of Application, Rescission of Judgment, Suretyship Liability, Abuse of Court Process, Costs on Attorney and Client Scale
Civil Procedure Banking and Finance Withdrawal of Application Rescission of Judgment Suretyship Liability Abuse of Court Process Costs on Attorney and Client Scale

Case Brief

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Parties

Jonathan Molyne Killik

Applicant

Investec Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Withdraw Rescission Application and Related Interlocutory Matters

Legal Issues

  1. 1 Whether the applicant should be permitted to withdraw the application for rescission of judgment with a tender for costs.
  2. 2 Whether the application for rescission of judgment should be dismissed.
  3. 3 Whether the affidavit alleging forgery justifies referral to trial or withdrawal of the rescission application.

Ratio Decidendi

The court found that the applicant's attempt to withdraw the rescission application, despite a tender for costs, was an abuse of process intended to delay enforcement of a valid judgment. The affidavit relied upon by the applicant was found to be unreliable and did not implicate the respondent in any fraud. The court emphasized that the existence and authenticity of the loan agreements and the advancement of funds had never been disputed, and that the applicant had previously relied on the loan agreements to support his own claims. The court held that there was no basis for withdrawal or rescission, and that the applications constituted an abuse of court process. Accordingly, all...

Court Disposition

All applications by the applicant are dismissed with costs, including the costs of two counsel.

Orders

  • The applicant's application for leave to withdraw the application for rescission of the judgment granted against him on 11 November 2009 is dismissed with costs.
  • The application for postponement of the application for rescission of judgment is dismissed with costs.