Kirsten NO and Others v ABSA Bank Ltd (13911/2010) [2010] ZAWCHC 543 (11 November 2010)

Kirsten NO and Others v ABSA Bank Ltd (13911/2010) [2010] ZAWCHC 543 (11 November 2010)

The court found that the arguments advanced by the applicants in support of leave to appeal were essentially the same as those previously considered and rejected during the summary judgment proceedings. The judge was not convinced that there were reasonable prospects of success on appeal and held that the previous judgment adequately addressed the issues raised. Accordingly, leave to appeal was refused. Furthermore, since the suretyship agreement provided for costs on the scale as between attorney and own client, the court ordered that costs in the application for leave to appeal be awarded on that scale.

Citation
[2010] ZAWCHC 543
Parties
Applicant: Maria Margaretha Kirsten NO. (J F Kirsten Trust IT139/82); Applicant: Springfever Investments 21 (Pty) Ltd; Applicant: Johan Frederick Kirsten; Respondent: ABSA Bank Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 November 2010
Case Number
13911/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Summary Judgment
Outcome
Application for leave to appeal refused with costs on the scale as between attorney and own client.
Judges
Gamble
Legal Topics
Summary Judgment, Leave to Appeal, Suretyship, Costs Order
Civil Procedure Banking and Finance Summary Judgment Leave to Appeal Suretyship Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Maria Margaretha Kirsten NO. (J F Kirsten Trust IT139/82)

Applicant

Springfever Investments 21 (Pty) Ltd

Applicant

Johan Frederick Kirsten

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Summary Judgment

Legal Issues

  1. 1 Whether the applicants have reasonable prospects of success on appeal against the summary judgment granted in favour of the respondent bank.
  2. 2 Whether the cost order should be granted on the scale as between attorney and own client as provided for in the suretyship agreement.

Ratio Decidendi

The court found that the arguments advanced by the applicants in support of leave to appeal were essentially the same as those previously considered and rejected during the summary judgment proceedings. The judge was not convinced that there were reasonable prospects of success on appeal and held that the previous judgment adequately addressed the issues raised. Accordingly, leave to appeal was refused. Furthermore, since the suretyship agreement provided for costs on the scale as between attorney and own client, the court ordered that costs in the application for leave to appeal be awarded on that scale.

Court Disposition

Application for leave to appeal refused with costs on the scale as between attorney and own client.

Orders

  • The application for leave to appeal is refused.
  • The applicants are ordered to pay the costs of the application on the scale as between attorney and own client, as provided for in the suretyship agreement.