Merb (Pty) Ltd and Others v Matthews and Others (2020/15069) [2021] ZAGPJHC 693 (16 November 2021)

Merb (Pty) Ltd and Others v Matthews and Others (2020/15069) [2021] ZAGPJHC 693 (16 November 2021)

The court held that the plaintiffs' particulars of claim, when read holistically and benevolently, contain sufficient averments to sustain a cause of action for rescission of costs orders based on common law fraud and for damages arising from fraudulent misrepresentation. The claim is not premised on Uniform Rule 42 but on common law grounds, and the necessary elements of fraud are pleaded. The exception based on res judicata or issue estoppel is not properly raised at this stage and should be dealt with by special plea, as it is fact-bound and requires evidence. The claim for damages is not for a costs order at a particular scale but for the actual diminution of patrimony due to...

Citation
[2021] ZAGPJHC 693
Parties
Plaintiff: Merb (Pty) Ltd; Plaintiff: Douglasdale Dairy (Pty) Ltd; Plaintiff: Matthews, Rowen Wauchpe; Defendant: Matthews, Michael Brian; Defendant: Thyne N.O., William Herbert Hunter; Defendant: Schindlers Attorneys
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 November 2021
Case Number
2020/15069
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
Maier-Frawley
Legal Topics
Fraudulent Misrepresentation, Rescission of Costs Order, Fideicommissum, Abuse of Process, Shareholder Disputes, Delictual Damages
Civil Procedure Commercial and Corporate Land and Property Fraudulent Misrepresentation Rescission of Costs Order Fideicommissum Abuse of Process Shareholder Disputes +1 more

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Parties

Merb (Pty) Ltd

Plaintiff

Douglasdale Dairy (Pty) Ltd

Plaintiff

Matthews, Rowen Wauchpe

Plaintiff

Matthews, Michael Brian

Defendant

Thyne N.O., William Herbert Hunter

Defendant

Schindlers Attorneys

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim disclose a cause of action for rescission of costs orders based on fraud.
  2. 2 Whether the claim for damages for legal costs incurred is sustainable under common law delict for fraudulent misrepresentation.
  3. 3 Whether the exception based on res judicata or issue estoppel is properly raised at this stage.

Ratio Decidendi

The court held that the plaintiffs' particulars of claim, when read holistically and benevolently, contain sufficient averments to sustain a cause of action for rescission of costs orders based on common law fraud and for damages arising from fraudulent misrepresentation. The claim is not premised on Uniform Rule 42 but on common law grounds, and the necessary elements of fraud are pleaded. The exception based on res judicata or issue estoppel is not properly raised at this stage and should be dealt with by special plea, as it is fact-bound and requires evidence. The claim for damages is not for a costs order at a particular scale but for the actual diminution of patrimony due to...

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed.
  • The first and fourth defendants are ordered to pay the plaintiffs' costs jointly and severally, the one paying the other to be absolved, on the scale as between party and party, such costs to include the costs of two counsel where so employed.