Mettle Architects CC v Lason Trading 12 (Pty) Limited (2008/30703) [2012] ZAGPJHC 301 (19 March 2012)

Mettle Architects CC v Lason Trading 12 (Pty) Limited (2008/30703) [2012] ZAGPJHC 301 (19 March 2012)

The court held that the plaintiff's particulars of claim do not support the importation of a right to fair and reasonable remuneration into the consultancy contract, as the contract expressly provides for the calculation of fees and contains a non-variation clause. The plaintiff's alleged waiver of its right to remuneration based on a percentage of project cost does not entitle it to substitute a new basis for remuneration not contained in the contract. The exceptions based on insufficient averments to sustain a cause of action and on the alleged variation of the contract succeed. However, the exceptions based on the alleged incapability of waiver and on non-compliance with Uniform Rule...

Citation
[2012] ZAGPJHC 301
Parties
Plaintiff: Mettle Architects CC; Plaintiff: J Joyner; Defendant: Lason Trading 12 (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 March 2012
Case Number
2008/30703
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exceptions partially upheld; plaintiff granted leave to amend particulars of claim.
Judges
G C Wright
Legal Topics
Contractual Waiver, Non Variation Clause, Implied Terms, Quantum Meruit, Uniform Rule 18, Remuneration Calculation
Commercial and Corporate Civil Procedure Contractual Waiver Non Variation Clause Implied Terms Quantum Meruit Uniform Rule 18 Remuneration Calculation

Case Brief

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Parties

Mettle Architects CC

Plaintiff

J Joyner

Plaintiff

Lason Trading 12 (Pty) Limited

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose sufficient averments to sustain a cause of action.
  2. 2 Whether the plaintiff can waive its right to remuneration calculated as a percentage of project cost under the consultancy contract.
  3. 3 Whether a right to fair and reasonable remuneration can be imported into the contract after such waiver.

Ratio Decidendi

The court held that the plaintiff's particulars of claim do not support the importation of a right to fair and reasonable remuneration into the consultancy contract, as the contract expressly provides for the calculation of fees and contains a non-variation clause. The plaintiff's alleged waiver of its right to remuneration based on a percentage of project cost does not entitle it to substitute a new basis for remuneration not contained in the contract. The exceptions based on insufficient averments to sustain a cause of action and on the alleged variation of the contract succeed. However, the exceptions based on the alleged incapability of waiver and on non-compliance with Uniform Rule...

Court Disposition

Exceptions partially upheld; plaintiff granted leave to amend particulars of claim.

Orders

  • The 1st, 3rd and 6th exceptions are dismissed.
  • The 2nd and 5th exceptions are allowed.