Matthews N.O and Others v Thyne N.O and Others (20714/17) [2018] ZAGPPHC 30 (16 February 2018)

Matthews N.O and Others v Thyne N.O and Others (20714/17) [2018] ZAGPPHC 30 (16 February 2018)

The court found that although the third to sixth plaintiffs are peregrines residing in Australia, the second plaintiff possesses substantial assets and business interests in South Africa, including unencumbered immovable property and significant shareholding in local companies. The plaintiffs are jointly and severally liable for any adverse costs order, and the second plaintiff's assets provide sufficient assurance that costs can be recovered locally. The action brought by the plaintiffs was bona fide, aimed at recovering trust assets allegedly misappropriated by the sixth defendant, and not vexatious or reckless. Requiring security for costs in these circumstances would unjustly impede...

Citation
[2018] ZAGPPHC 30
Parties
Plaintiff: Rowan Wauchope Matthews N.O.; Plaintiff: Matthews: Rowan Wauchope; Plaintiff: Matthews: Lynn Delene Kilgour; Plaintiff: Matthews: Mark Rowan; Plaintiff: Matthews: Bianca Rose; Plaintiff: Matthews: Elizabeth Tallulah; Defendant: William Herbert Hunter Thyne N.O.; Defendant: PSG Wealth Financial Planning (Pty) Ltd; Defendant: Ronald Norman King N.O.; Defendant: Michael Brian Matthew N.O.; Defendant: King: Ronald Norman; Defendant: Matthew: Michael Brian; Defendant: Ward: Helen; Defendant: The Master of the High Court: Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 February 2018
Case Number
20714/17
Procedural Posture
Stay Application / Application for Security for Costs Under Rule 47(3) Prior to Main Action Proceeding
Outcome
Application for security for costs dismissed with costs, including costs of two counsel.
Judges
N.M MAVUNDLA
Legal Topics
Security for Costs, Peregrinus Vs Incola, Trust Dispute, Joint and Several Liability, Constitutional Right of Access, Exercise of Judicial Discretion
Civil Procedure Commercial and Corporate Security for Costs Peregrinus Vs Incola Trust Dispute Joint and Several Liability Constitutional Right of Access Exercise of Judicial Discretion

Case Brief

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Parties

Rowan Wauchope Matthews N.O.

Plaintiff

Matthews: Rowan Wauchope

Plaintiff

Matthews: Lynn Delene Kilgour

Plaintiff

Matthews: Mark Rowan

Plaintiff

Matthews: Bianca Rose

Plaintiff

Matthews: Elizabeth Tallulah

Plaintiff

William Herbert Hunter Thyne N.O.

Defendant

PSG Wealth Financial Planning (Pty) Ltd

Defendant

Ronald Norman King N.O.

Defendant

Michael Brian Matthew N.O.

Defendant

King: Ronald Norman

Defendant

Matthew: Michael Brian

Defendant

Ward: Helen

Defendant

The Master of the High Court: Pretoria

Defendant

Procedural Posture

Stay Application / Application for Security for Costs Under Rule 47(3) Prior to Main Action Proceeding

Legal Issues

  1. 1 Whether the plaintiffs, as peregrines, should be ordered to furnish security for costs before proceeding with the main action.
  2. 2 Whether the second plaintiff's substantial assets and interests in South Africa absolve him and the other plaintiffs from the obligation to provide security for costs.
  3. 3 Whether the action brought by the plaintiffs is vexatious or bona fide in the context of trust asset recovery.

Ratio Decidendi

The court found that although the third to sixth plaintiffs are peregrines residing in Australia, the second plaintiff possesses substantial assets and business interests in South Africa, including unencumbered immovable property and significant shareholding in local companies. The plaintiffs are jointly and severally liable for any adverse costs order, and the second plaintiff's assets provide sufficient assurance that costs can be recovered locally. The action brought by the plaintiffs was bona fide, aimed at recovering trust assets allegedly misappropriated by the sixth defendant, and not vexatious or reckless. Requiring security for costs in these circumstances would unjustly impede...

Court Disposition

Application for security for costs dismissed with costs, including costs of two counsel.

Orders

  • The sixth defendant's application for security for costs is dismissed.
  • The plaintiffs are absolved from furnishing any security for costs.