Lockhart v Thomas (7038/2007) [2009] ZAWCHC 148 (1 June 2009)

Lockhart v Thomas (7038/2007) [2009] ZAWCHC 148 (1 June 2009)

The court found that the oral agreement reached in April 2003 was not binding on the parties as a sale agreement, because the suspensive condition—that Kampers would determine the nett asset value as at 31 May 2003—was never fulfilled. Kampers, acting only as a mediator and not as an arbitrator, withdrew before making any determination. The necessity for a meeting on 31 May 2003 indicated that the parties were not in agreement regarding the cut-off date and that further negotiations were anticipated. Since the appointed mediator did not determine the value and the suspensive condition remained unfulfilled, there was no binding agreement of sale, and the plaintiff's claim must fail.

Citation
[2009] ZAWCHC 148
Parties
Plaintiff: Douglas Cook Lockhart; Defendant: Sara Emily Thomas
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 June 2009
Case Number
7038/2007
Procedural Posture
Civil Trial / First Instance
Outcome
Plaintiff's claim dismissed with costs.
Judges
K J Moloi
Legal Topics
Close Corporation Dissolution, Oral Agreement, Suspensive Condition, Members Interest, Amicable Settlement
Commercial and Corporate Land and Property Close Corporation Dissolution Oral Agreement Suspensive Condition Members Interest Amicable Settlement

Case Brief

Summary, issues, holding and outcome

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Parties

Douglas Cook Lockhart

Plaintiff

Sara Emily Thomas

Defendant

Procedural Posture

Civil Trial / First Instance

Legal Issues

  1. 1 Whether the oral agreement reached in April 2003 regarding the dissolution of the close corporation was binding on the parties.
  2. 2 Whether the determination of the defendant's 30% members interest was subject to the values as at 31 May 2003.
  3. 3 Whether the suspensive condition for the agreement of sale was fulfilled.

Ratio Decidendi

The court found that the oral agreement reached in April 2003 was not binding on the parties as a sale agreement, because the suspensive condition—that Kampers would determine the nett asset value as at 31 May 2003—was never fulfilled. Kampers, acting only as a mediator and not as an arbitrator, withdrew before making any determination. The necessity for a meeting on 31 May 2003 indicated that the parties were not in agreement regarding the cut-off date and that further negotiations were anticipated. Since the appointed mediator did not determine the value and the suspensive condition remained unfulfilled, there was no binding agreement of sale, and the plaintiff's claim must fail.

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed.
  • The plaintiff is ordered to pay the costs of the defendant.