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South Africa Order

Supreme Court of Appeal

Nedcor Bank Ltd and Others v Master of The High Court and Others (1) (111/2001) [2002] ZASCA 53 (29 May 2002)

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Source document

01

Holding and result

The Supreme Court of Appeal found that the costs order in paragraph 10 of its original judgment was made per incuriam, meaning it was issued without proper consideration of the relevant legal principles. The Court withdrew the original costs order and substituted it with an order dismissing the appeal with costs, in line with the application of section 152 of the Insolvency Act and established principles governing costs in civil appeals.

Court disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.

02

Material facts

Parties

Nedcor Bank Ltd

Appellant

Murray and Roberts Construction Ltd

Appellant

Gary Charles Hess

Appellant

James Byrne

Appellant

Trevor John Griffiths

Appellant

The Master of the High Court, Pretoria

Respondent

Anton Victor Hamman NO

Respondent

Anna Catherina Basson

Respondent

Johannes Marthinus Basson

Respondent

03

Procedural history

  1. Posture

    Civil Appeal / Amended Costs Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellants argued that the costs order in the original judgment was incorrect and should be amended to reflect the proper disposition of costs in accordance with the application of section 152 of the Insolvency Act.
Respondent
The respondents maintained that the original costs order was made per incuriam and supported its withdrawal and substitution with an order dismissing the appeal with costs.

05

Court’s reasoning

  1. 01

    General principles of civil procedure

    A costs order made per incuriam must be withdrawn and substituted with the correct order.

  2. 02

    Insolvency Act

    Section 152 of the Insolvency Act governs the costs in matters where a close corporation is placed under a winding-up order.

06

Ratio, limits and disposition

Ratio decidendi

The Supreme Court of Appeal found that the costs order in paragraph 10 of its original judgment was made per incuriam, meaning it was issued without proper consideration of the relevant legal principles. The Court withdrew the original costs order and substituted it with an order dismissing the appeal with costs, in line with the application of section 152 of the Insolvency Act and established principles governing costs in civil appeals.

Court disposition

Appeal dismissed with costs.

  • The appeal is dismissed with costs.

Source and reliance status

Supreme Court of Appeal

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Judgment text

The complete available source text.

Source document

Supreme Court of Appeal

Order

[2002] ZASCA 53

THE

SUPREME COURT OF APPEAL

OF

SOUTH AFRICA

CASE NO: 111/2001

In the matter between:

NEDCOR BANK LTD First Appellant

MURRAY AND ROBERTS CONSTRUCTION LTD Second Appellant

GARY CHARLES HESS Third Appellant

JAMES BYRNE Fourth Appellant

TREVOR JOHN GRIFFITHS Fifth Appellant

and

THE MASTER OF THE HIGH COURT, PRETORIA First Respondent

ANTON VICTOR HAMMAN NO Second Respondent

ANNA CATHERINA BASSON Third Respondent

JOHANNES MARTHINUS BASSON Fourth Respondent

Before: HEFER AP, ZULMAN, BRAND & NUGENT JJA &

LEWIS AJA

Heard: 16 MAY 2002

Delivered: 29 MAY 2002

Summary: Application of s 152 of Insolvency Act where Close Corporation placed under winding-up order

_____________

AMENDED COSTS ORDER

LEWIS AJA:

The costs order in paragraph 10 of the judgment of this Court delivered on 29 May 2002 was made per incuriam. It is withdrawn, and in its place is substituted the following:

‘The appeal is dismissed with costs.’

C H LEWIS

ACTING

JUDGE OF APPEAL

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Insolvency Act

Legislation

Legislation referenced in the available case record.

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