Marock v Attacq Limited and Another (2015/40044) [2018] ZAGPPHC 260 (17 April 2018)

Marock v Attacq Limited and Another (2015/40044) [2018] ZAGPPHC 260 (17 April 2018)

The court found that clause 24 of the sale agreement did not specify the exact commission due to the applicant and lacked sufficient detail to establish a contractual right to payment. Although the clause mentioned both Kuun and the applicant as beneficiaries of the aggregate commission, it did not stipulate the portion payable to each. The applicant failed to lay a sound basis for his claim to half the commission and did not plead or prove any tacit term regarding the distribution. The court held that, without proof of the specific amount due, the applicant could not succeed in his claim for commission against the first respondent. The application was therefore dismissed.

Citation
[2018] ZAGPPHC 260
Parties
Applicant: GM Marock; Respondent: Attacq Limited; Respondent: Ascension Properties Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 April 2018
Case Number
2015/40044
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsels.
Judges
S S Mphahlele
Legal Topics
Stipulatio Alteri, Commission Claim, Contractual Interpretation, Agency Law
Commercial and Corporate Stipulatio Alteri Commission Claim Contractual Interpretation Agency Law

Case Brief

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Parties

GM Marock

Applicant

Attacq Limited

Respondent

Ascension Properties Limited

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether clause 24 of the sale agreement constitutes a valid stipulatio alteri conferring a right to commission on the applicant.
  2. 2 Whether the applicant accepted the benefit of the stipulatio alteri in clause 24 timeously.
  3. 3 Whether clause 24 entitles the applicant to a specific amount of commission from the first respondent.

Ratio Decidendi

The court found that clause 24 of the sale agreement did not specify the exact commission due to the applicant and lacked sufficient detail to establish a contractual right to payment. Although the clause mentioned both Kuun and the applicant as beneficiaries of the aggregate commission, it did not stipulate the portion payable to each. The applicant failed to lay a sound basis for his claim to half the commission and did not plead or prove any tacit term regarding the distribution. The court held that, without proof of the specific amount due, the applicant could not succeed in his claim for commission against the first respondent. The application was therefore dismissed.

Court Disposition

Application dismissed with costs, including costs of two counsels.

Orders

  • The application is dismissed with costs, including the costs of two counsels.