Marder Properties CC v Consilium Advocates (Pty) Ltd (17544/2010) [2012] ZAGPJHC 157 (12 September 2012)

Marder Properties CC v Consilium Advocates (Pty) Ltd (17544/2010) [2012] ZAGPJHC 157 (12 September 2012)

The court found that the defendant's interpretation of the amended paragraph was not the only possible interpretation. The paragraph could reasonably be read to mean that commission is payable upon transfer for cash or bond sales, and upon the sale being deemed perfecta for instalment sale agreements. Since this interpretation supports the plaintiff's cause of action, the particulars of claim are not excipiable. The exception was therefore dismissed.

Citation
[2012] ZAGPJHC 157
Parties
Plaintiff: Marder Properties CC; Defendant: Consilium Advocates (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 September 2012
Case Number
17544/2010
Procedural Posture
Exception Application / Exception to Amended Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
FHD Van Oosten
Legal Topics
Exception to Pleadings, Cause of Action, Agent Commission, Contract Interpretation
Civil Procedure Commercial and Corporate Exception to Pleadings Cause of Action Agent Commission Contract Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Marder Properties CC

Plaintiff

Consilium Advocates (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's amended particulars of claim disclose a cause of action for agent's commission.
  2. 2 Whether the relevant paragraph in the amended particulars of claim is capable of an interpretation that supports the plaintiff's claim.

Ratio Decidendi

The court found that the defendant's interpretation of the amended paragraph was not the only possible interpretation. The paragraph could reasonably be read to mean that commission is payable upon transfer for cash or bond sales, and upon the sale being deemed perfecta for instalment sale agreements. Since this interpretation supports the plaintiff's cause of action, the particulars of claim are not excipiable. The exception was therefore dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed.
  • The defendant is ordered to pay the costs of the exception.