Niemand v Hollard Insurance Company Limited (13691/2021) [2024] ZAGPPHC 1203 (22 November 2024)

Niemand v Hollard Insurance Company Limited (13691/2021) [2024] ZAGPPHC 1203 (22 November 2024)

The appellant's liability arises from the Deed of Indemnity and Suretyship, which obliges him to pay the respondent on demand any amount paid under the guarantee, irrespective of the underlying contract's status or the appellant's admission of liability. The advance payment guarantee is a conditional bond, but the respondent received a written demand stating breach and termination of the subcontract, and Wameschsi was under liquidation. These facts were not disputed. The formalities required by the guarantee presume completion of the contract, which did not occur. The respondent acted appropriately in honouring both guarantees. The appellant failed to demonstrate reasonable prospects of...

Citation
[2024] ZAGPPHC 1203
Parties
Appellant: Lucas Jurie Niemand; Respondent: The Hollard Insurance Company Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 November 2024
Case Number
13691/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal or Full Bench, Following Judgment and Order Delivered on 10 April 2024.
Outcome
Application for leave to appeal dismissed with costs, including counsel's fees.
Judges
Nkosi
Legal Topics
Suretyship, Indemnity, Advance Payment Guarantee, Performance Guarantee, Leave to Appeal
Civil Procedure Commercial and Corporate Suretyship Indemnity Advance Payment Guarantee Performance Guarantee Leave to Appeal

Case Brief

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Parties

Lucas Jurie Niemand

Appellant

The Hollard Insurance Company Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal or Full Bench, Following Judgment and Order Delivered on 10 April 2024.

Legal Issues

  1. 1 Whether the appellant has reasonable prospects of success on appeal against the judgment and order of 10 April 2024.
  2. 2 Whether the conditions of the advance payment guarantee were fulfilled, obliging the respondent to pay.
  3. 3 Whether the appellant can be held liable under the indemnity and suretyship despite alleged non-compliance with guarantee conditions.

Ratio Decidendi

The appellant's liability arises from the Deed of Indemnity and Suretyship, which obliges him to pay the respondent on demand any amount paid under the guarantee, irrespective of the underlying contract's status or the appellant's admission of liability. The advance payment guarantee is a conditional bond, but the respondent received a written demand stating breach and termination of the subcontract, and Wameschsi was under liquidation. These facts were not disputed. The formalities required by the guarantee presume completion of the contract, which did not occur. The respondent acted appropriately in honouring both guarantees. The appellant failed to demonstrate reasonable prospects of...

Court Disposition

Application for leave to appeal dismissed with costs, including counsel's fees.

Orders

  • The application for leave to appeal is dismissed with costs inclusive of counsel's fees.