Killik v Van Vuuren (715/2015) [2019] ZAECPEHC 45 (2 July 2019)

Killik v Van Vuuren (715/2015) [2019] ZAECPEHC 45 (2 July 2019)

The court held that the order of Schoeman J was clear and unambiguous in its terms: the defendant's defence would be struck out if the taxed costs were not paid by the specified date. However, as the costs had not been taxed by that date, the order could not be carried into effect at that time. Consequently, the defence was not automatically struck out on 1 August 2018. The plaintiff was not entitled to proceed on an unopposed basis solely by reason of the subsequent taxation and non-payment. The proper course was to postpone the trial and order payment of the taxed costs within a specified period, with the defence to be struck out only if payment was not made within that period. Each...

Citation
[2019] ZAECPEHC 45
Parties
Plaintiff: John Peter Molyneux Killik; Defendant: Eugene Van Vuuren
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 July 2019
Case Number
715/2015
Procedural Posture
Civil Trial / Postponement and Costs Order After Interlocutory Dispute
Outcome
The trial was postponed sine die. Each party was ordered to pay their own costs occasioned by the postponement. The defendant was ordered to pay the taxed costs within five days, failing which the defence would be struck out and the plaintiff entitled to proceed unopposed.
Judges
G.G Goosen
Legal Topics
Striking Out of Defence, Costs Orders, Postponement of Trial, Interpretation of Court Orders
Civil Procedure Striking Out of Defence Costs Orders Postponement of Trial Interpretation of Court Orders

Case Brief

Summary, issues, holding and outcome

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Parties

John Peter Molyneux Killik

Plaintiff

Eugene Van Vuuren

Defendant

Procedural Posture

Civil Trial / Postponement and Costs Order After Interlocutory Dispute

Legal Issues

  1. 1 Whether the defendant's defence was automatically struck out due to non-payment of taxed costs by the specified date.
  2. 2 Whether the plaintiff was entitled to proceed on an unopposed basis.
  3. 3 How the order of Schoeman J should be interpreted and applied given the sequence of events.

Ratio Decidendi

The court held that the order of Schoeman J was clear and unambiguous in its terms: the defendant's defence would be struck out if the taxed costs were not paid by the specified date. However, as the costs had not been taxed by that date, the order could not be carried into effect at that time. Consequently, the defence was not automatically struck out on 1 August 2018. The plaintiff was not entitled to proceed on an unopposed basis solely by reason of the subsequent taxation and non-payment. The proper course was to postpone the trial and order payment of the taxed costs within a specified period, with the defence to be struck out only if payment was not made within that period. Each...

Court Disposition

The trial was postponed sine die. Each party was ordered to pay their own costs occasioned by the postponement. The defendant was ordered to pay the taxed costs within five days, failing which the defence would be struck out and the plaintiff entitled to proceed unopposed.

Orders

  • The trial is postponed sine die.
  • The parties shall pay their own costs occasioned by the postponement.