Marriott and Another v ABSA Bank Ltd and Another (6910 /2009) [2010] ZAKZDHC 36 (24 August 2010)

Marriott and Another v ABSA Bank Ltd and Another (6910 /2009) [2010] ZAKZDHC 36 (24 August 2010)

The court found that the applicants failed to provide a reasonable explanation for their default, as evidence indicated they were aware of the summons and did not adequately explain their failure to defend. The application for rescission was not bona fide, given the applicants' lack of candour and the sequence of events following service. The applicants' defence under the National Credit Act was rejected because the debt review process had been validly terminated and no proper application for debt restructuring was pending at the relevant time. The requirements for rescission under common law were not met, and the application was dismissed.

Citation
[2010] ZAKZDHC 36
Parties
Applicant: Lorraine Maud Marriott; Applicant: Vincent Paul Marriott; Respondent: ABSA Bank Limited; Respondent: Sheriff of the High Court Durban South
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
24 August 2010
Case Number
6910 /2009
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment dismissed with costs.
Judges
Sishi
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, National Credit Act, Debt Review, Good Cause Requirement
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Service of Process National Credit Act Debt Review Good Cause Requirement

Case Brief

Summary, issues, holding and outcome

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Parties

Lorraine Maud Marriott

Applicant

Vincent Paul Marriott

Applicant

ABSA Bank Limited

Respondent

Sheriff of the High Court Durban South

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants provided a reasonable explanation for their default in failing to defend the action.
  2. 2 Whether the application for rescission is bona fide.
  3. 3 Whether the applicants have a bona fide defence with prospects of success under the National Credit Act.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their default, as evidence indicated they were aware of the summons and did not adequately explain their failure to defend. The application for rescission was not bona fide, given the applicants' lack of candour and the sequence of events following service. The applicants' defence under the National Credit Act was rejected because the debt review process had been validly terminated and no proper application for debt restructuring was pending at the relevant time. The requirements for rescission under common law were not met, and the application was dismissed.

Court Disposition

Application for rescission of default judgment dismissed with costs.

Orders

  • The applicants' application for rescission of the default judgment granted by this Court against the applicants on 24 June 2009 is dismissed with costs.