New Republic Bank Ltd v Rossiter (7332/2009) [2010] ZAKZDHC 77 (13 December 2010)

New Republic Bank Ltd v Rossiter (7332/2009) [2010] ZAKZDHC 77 (13 December 2010)

The court found that the clauses in the agreement were not sufficiently clear to resolve the dispute regarding the existence of a cession without reference to evidence of surrounding circumstances. Therefore, the first, second, and third complaints of the excipient regarding vagueness and embarrassment in the...

Source-derived case information.

Citation
[2010] ZAKZDHC 77
Parties
Plaintiff: New Republic Bank Limited; Defendant: Terence Rossiter
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
13 December 2010
Case Number
7332/2009
Procedural Posture
Civil Procedure / Exception to Plea and Counterclaim
Outcome
Partial success for excipient; exceptions regarding cession dismissed, exceptions regarding section 38 upheld.
Judges
K Swain
Legal Topics
Exception Procedure, Cession of Claims, Interpretation of Contracts, Financial Assistance, Companies Act Section 38
Civil Procedure Commercial and Corporate Exception Procedure Cession of Claims Interpretation of Contracts Financial Assistance Companies Act Section 38

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Summary, issues, holding and outcome

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Parties

New Republic Bank Limited

Plaintiff

Terence Rossiter

Defendant

Procedural Posture

Civil Procedure / Exception to Plea and Counterclaim

Legal Issues

  1. 1 Whether the defendant's plea and counterclaim regarding the existence of a cession are vague and embarrassing.
  2. 2 Whether the allegations concerning contravention of section 38(1) of the Companies Act are vague and embarrassing.

Ratio Decidendi

The court found that the clauses in the agreement were not sufficiently clear to resolve the dispute regarding the existence of a cession without reference to evidence of surrounding circumstances. Therefore, the first, second, and third complaints of the excipient regarding vagueness and embarrassment in the defendant's plea and counterclaim were dismissed. However, the court held that the allegations relating to the contravention of section 38(1) of the Companies Act were vague and embarrassing, as the defendant failed to specify the basis for the alleged contravention. Accordingly, the fourth complaint to the plea and the third complaint to the counterclaim were upheld. The defendant...

Court Disposition

Partial success for excipient; exceptions regarding cession dismissed, exceptions regarding section 38 upheld.

Orders

  • The first, second and third complaints of the excipient to the defendant's plea, and the first and second complaints to the defendant's counterclaim, are dismissed.
  • The fourth complaint of the excipient to the defendant's plea and the third complaint to the defendant's counterclaim are upheld.