Nedbank Limited v George and Others (2441/2015) [2015] ZAECPEHC 51 (10 September 2015)

Nedbank Limited v George and Others (2441/2015) [2015] ZAECPEHC 51 (10 September 2015)

The court found that the defendants did not provide sufficient evidence of a binding agreement preventing the plaintiff from issuing summons. The payment history did not support the existence of such an agreement, and the defendants only acted after receiving notice of the default judgment application. The plaintiff was justified in instituting proceedings and is entitled to costs. The matter was settled on the merits, but the defendants are ordered to pay the costs of the application for default judgment, jointly and severally, as between attorney and client.

Citation
[2015] ZAECPEHC 51
Parties
Plaintiff: Nedbank Limited; Defendant: Thembinkosi Welcome George; Defendant: Nozuko Gloria George
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
10 September 2015
Case Number
2441/2015
Procedural Posture
Default Judgment Application / Application for Default Judgment Following Non Appearance to Defend; Matter Settled Before Judgment.
Outcome
Matter settled on the merits; costs awarded against the defendants.
Judges
N G Beshe
Legal Topics
Default Judgment, Mortgage Bond Enforcement, Costs Order, Arrears, Settlement
Civil Procedure Banking and Finance Default Judgment Mortgage Bond Enforcement Costs Order Arrears Settlement

Case Brief

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Parties

Nedbank Limited

Plaintiff

Thembinkosi Welcome George

Defendant

Nozuko Gloria George

Defendant

Procedural Posture

Default Judgment Application / Application for Default Judgment Following Non Appearance to Defend; Matter Settled Before Judgment.

Legal Issues

  1. 1 Whether the plaintiff was justified in issuing summons against the defendants prior to the expiry of an alleged payment arrangement period.
  2. 2 Whether the defendants are liable for the costs of the application for default judgment.
  3. 3 Whether there was a valid agreement preventing the plaintiff from instituting action at the time summons was issued.

Ratio Decidendi

The court found that the defendants did not provide sufficient evidence of a binding agreement preventing the plaintiff from issuing summons. The payment history did not support the existence of such an agreement, and the defendants only acted after receiving notice of the default judgment application. The plaintiff was justified in instituting proceedings and is entitled to costs. The matter was settled on the merits, but the defendants are ordered to pay the costs of the application for default judgment, jointly and severally, as between attorney and client.

Court Disposition

Matter settled on the merits; costs awarded against the defendants.

Orders

  • The matter having been settled between the parties on the merits, it is hereby removed from the roll.
  • The defendants are ordered to pay the costs of the application as between attorney and client, jointly and severally the one paying the other to be absolved.