Lurie v Finkelstein and Others (89859/2014) [2016] ZAGPPHC 417 (9 June 2016)

Lurie v Finkelstein and Others (89859/2014) [2016] ZAGPPHC 417 (9 June 2016)

The court held that the applicant, upon transfer of her property, became a trust creditor of the attorney and not the owner of the funds deposited in the attorney's trust account. The money deposited by Dayal became the property of the bank by virtue of commixtio, and the applicant's claim is against the attorney, not the bank or the attached funds. The applicant failed to establish a direct right to the attached funds and therefore lacked standing to seek the declaratory relief sought. The application was dismissed on this basis, and the court found it unnecessary to address the remaining defences.

Citation
[2016] ZAGPPHC 417
Parties
Applicant: Marion Lurie; Respondent: Mark Finkelstein; Respondent: Proud Heritage Properties 169 (Pty) Ltd; Respondent: The Standard Bank of South African Limited; Respondent: The Sheriff of the High Court, Sandton South; Respondent: The Law Society of the Northern Provinces; Respondent: Esebetse Trading & Projects (Pty) Ltd; Respondent: Quantum Leap Investment 88 (Pty) Ltd; Respondent: Makhado Project Management (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 June 2016
Case Number
89859/2014
Procedural Posture
Urgent Application / Application for Declaratory Relief and Related Orders; Opposed by Second Respondent; Condonation for Late Filing of Answering Affidavit Granted.
Outcome
Application dismissed; each party to pay its own costs.
Judges
P O Moseamo
Legal Topics
Trust Account Attachment, Ownership of Deposited Funds, Declaratory Relief, Attorneys Act Compliance
Civil Procedure Banking and Finance Trust Account Attachment Ownership of Deposited Funds Declaratory Relief Attorneys Act Compliance

Case Brief

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Parties

Marion Lurie

Applicant

Mark Finkelstein

Respondent

Proud Heritage Properties 169 (Pty) Ltd

Respondent

The Standard Bank of South African Limited

Respondent

The Sheriff of the High Court, Sandton South

Respondent

The Law Society of the Northern Provinces

Respondent

Esebetse Trading & Projects (Pty) Ltd

Respondent

Quantum Leap Investment 88 (Pty) Ltd

Respondent

Makhado Project Management (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Declaratory Relief and Related Orders; Opposed by Second Respondent; Condonation for Late Filing of Answering Affidavit Granted.

Legal Issues

  1. 1 Whether the applicant is entitled to a declaratory order that the attached funds are her sole and absolute property.
  2. 2 Whether the attachment of funds in the attorney's trust account should be set aside.
  3. 3 Whether the applicant has a direct claim to the attached funds or only a claim against the attorney.

Ratio Decidendi

The court held that the applicant, upon transfer of her property, became a trust creditor of the attorney and not the owner of the funds deposited in the attorney's trust account. The money deposited by Dayal became the property of the bank by virtue of commixtio, and the applicant's claim is against the attorney, not the bank or the attached funds. The applicant failed to establish a direct right to the attached funds and therefore lacked standing to seek the declaratory relief sought. The application was dismissed on this basis, and the court found it unnecessary to address the remaining defences.

Court Disposition

Application dismissed; each party to pay its own costs.

Orders

  • The applicant's late filing of the answering affidavit is condoned.
  • The application is dismissed.