Kilroe-Daley v Barclays National Bank Ltd (385/82) [1984] ZASCA 90; [1984] 2 All SA 551 (A) ; 1984 (4) SA 609 (A) (4 September 1984)

Kilroe-Daley v Barclays National Bank Ltd (385/82) [1984] ZASCA 90; [1984] 2 All SA 551 (A) ; 1984 (4) SA 609 (A) (4 September 1984)

The court held that the appellant's liability as surety and co-principal debtor was accessory to the principal debt owed by Dodo Shipping Company. The debt became due on 31 July 1974, and prescription commenced from that date. The Bank filed its claim against Dodo in liquidation, which delayed prescription under section 13(1)(g) and (i) of the Prescription Act until one year after the confirmation of the liquidation account on 9 August 1978. The summons was served on the appellant after this period, on 31 March 1980, and thus the claim had prescribed. The court rejected the Bank's argument that the confirmation of the liquidation account by the Master constituted a final judgment for the...

Citation
[1984] ZASCA 90
Parties
Appellant: Maria Johanna Kilroe-Daley; Respondent: Barclays National Bank Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
4 September 1984
Case Number
385/82
Procedural Posture
Civil Appeal / Appeal From Judgment of Trial Court
Outcome
Appeal allowed; the Bank's claim against the appellant is dismissed with costs, excluding costs for unnecessary documents.
Judges
Rabie, Jansen, Nicholas, Galgut, Howard
Legal Topics
Suretyship, Prescription Act, Mortgage Bond, Liquidation, Final Judgment Effect
Banking and Finance Civil Procedure Suretyship Prescription Act Mortgage Bond Liquidation Final Judgment Effect

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Maria Johanna Kilroe-Daley

Appellant

Barclays National Bank Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Trial Court

Legal Issues

  1. 1 Whether the Bank's claim against the appellant as surety and co-principal debtor had become prescribed under the Prescription Act.
  2. 2 Whether the confirmation of the liquidation account by the Master constitutes a 'final judgment' for the purposes of extending the prescription period to thirty years.
  3. 3 Whether the debt secured by a mortgage bond by a surety and co-principal debtor is subject to the thirty-year prescription period.

Ratio Decidendi

The court held that the appellant's liability as surety and co-principal debtor was accessory to the principal debt owed by Dodo Shipping Company. The debt became due on 31 July 1974, and prescription commenced from that date. The Bank filed its claim against Dodo in liquidation, which delayed prescription under section 13(1)(g) and (i) of the Prescription Act until one year after the confirmation of the liquidation account on 9 August 1978. The summons was served on the appellant after this period, on 31 March 1980, and thus the claim had prescribed. The court rejected the Bank's argument that the confirmation of the liquidation account by the Master constituted a final judgment for the...

Court Disposition

Appeal allowed; the Bank's claim against the appellant is dismissed with costs, excluding costs for unnecessary documents.

Orders

  • The appeal is allowed with costs, excluding costs occasioned by the inclusion in the record of pages 9-12; 31-34; 52-64; 143-194; 196-201.
  • Costs occasioned by the employment of two counsel are allowed.