Nikkel Trading 94 (PTY) Ltd t/a Nail and Another v SA Retail Properties (Pty) Ltd (94888/2016) [2018] ZAGPPHC 667 (4 September 2018)

Nikkel Trading 94 (PTY) Ltd t/a Nail and Another v SA Retail Properties (Pty) Ltd (94888/2016) [2018] ZAGPPHC 667 (4 September 2018)

The court found that service of summons at 21 Cowy Road, Berea, Durban was proper and in accordance with the lease agreement, which expressly provided this address as the chosen domicilium citandi et executandi. The applicants failed to deny receipt of the summons and did not provide evidence of improper service. The alleged counter-claim based on misrepresentation was not a valid defence to the respondent's claim and could be pursued separately. Furthermore, the applicants conceded in their founding affidavit that they did not deny the respondent's case, thereby admitting liability and failing to establish a bona fide defence. Consequently, the requirements for rescission were not met.

Citation
[2018] ZAGPPHC 667
Parties
Applicant: Nikkel Trading 94 (PTY) Ltd t/a Nail; Applicant: Pragasen Naidoo; Respondent: SA Retail Properties (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 September 2018
Case Number
94888/2016
Procedural Posture
Rescission Application / Judgment
Outcome
Application dismissed with costs on attorney and client scale.
Judges
Mooisa
Legal Topics
Rescission of Judgment, Service of Process, Commercial Lease, Attorney and Client Costs
Civil Procedure Commercial and Corporate Rescission of Judgment Service of Process Commercial Lease Attorney and Client Costs

Case Brief

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Parties

Nikkel Trading 94 (PTY) Ltd t/a Nail

Applicant

Pragasen Naidoo

Applicant

SA Retail Properties (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Judgment

Legal Issues

  1. 1 Whether service of summons was effected at the correct domicilium citandi et executandi as per the lease agreement.
  2. 2 Whether the applicants have a bona fide defence to the respondent's claim.
  3. 3 Whether the existence of a counter-claim based on alleged misrepresentation justifies rescission of judgment.

Ratio Decidendi

The court found that service of summons at 21 Cowy Road, Berea, Durban was proper and in accordance with the lease agreement, which expressly provided this address as the chosen domicilium citandi et executandi. The applicants failed to deny receipt of the summons and did not provide evidence of improper service. The alleged counter-claim based on misrepresentation was not a valid defence to the respondent's claim and could be pursued separately. Furthermore, the applicants conceded in their founding affidavit that they did not deny the respondent's case, thereby admitting liability and failing to establish a bona fide defence. Consequently, the requirements for rescission were not met.

Court Disposition

Application dismissed with costs on attorney and client scale.

Orders

  • The application for rescission is dismissed.
  • The applicants are ordered to pay the costs on attorney and client scale.