Nedbank Ltd v Behr NO and Another (3361/2009) [2010] ZAECPEHC 38 (29 June 2010)

Nedbank Ltd v Behr NO and Another (3361/2009) [2010] ZAECPEHC 38 (29 June 2010)

The court found that, following settlement of the principal debt and sale of the bonded property, no judgment could be granted against the Trust for the claimed amount. The documentation annexed to the opposing affidavits reflected the Trust's involvement in the debt review process, and the defence raised was not clearly bad in law. Accordingly, the Trust was granted leave to defend the action. The only remaining issue was costs, and the court ordered that the costs of the summary judgment application be costs in the cause of the main action.

Citation
[2010] ZAECPEHC 38
Parties
Plaintiff: Nedbank Limited; Defendant: Joseph Phillip Behr N.O.; Defendant: Brunette Behr N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
29 June 2010
Case Number
3361/2009
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Costs Determination After Settlement
Outcome
Leave to defend granted to the Trust; costs of the summary judgment application to be costs in the cause.
Judges
Nepgen
Legal Topics
Summary Judgment, Mortgage Bond Enforcement, Costs in the Cause, Debt Review Process
Civil Procedure Banking and Finance Summary Judgment Mortgage Bond Enforcement Costs in the Cause Debt Review Process

Case Brief

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Parties

Nedbank Limited

Plaintiff

Joseph Phillip Behr N.O.

Defendant

Brunette Behr N.O.

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Costs Determination After Settlement

Legal Issues

  1. 1 Whether summary judgment should be granted against the Trust for the alleged outstanding debt.
  2. 2 Whether the Trust was part of the debt review process.
  3. 3 How costs should be determined following settlement of the principal debt.

Ratio Decidendi

The court found that, following settlement of the principal debt and sale of the bonded property, no judgment could be granted against the Trust for the claimed amount. The documentation annexed to the opposing affidavits reflected the Trust's involvement in the debt review process, and the defence raised was not clearly bad in law. Accordingly, the Trust was granted leave to defend the action. The only remaining issue was costs, and the court ordered that the costs of the summary judgment application be costs in the cause of the main action.

Court Disposition

Leave to defend granted to the Trust; costs of the summary judgment application to be costs in the cause.

Orders

  • The Trust is granted leave to defend the action.
  • The costs of the application for summary judgment are to be costs in the cause of the main action.