Park 2000 Development (Pty) Ltd v Page (905/2010) [2011] ZASCA 208 (29 November 2011)

Park 2000 Development (Pty) Ltd v Page (905/2010) [2011] ZASCA 208 (29 November 2011)

Clause 10 of the agreement is a suspensive condition solely for the benefit of the purchaser, requiring the purchaser to obtain a bond for 80% of the purchase price within seven days of signature. If the condition is not fulfilled and not waived by the purchaser before the cut-off date, the agreement lapses automatically. The seller's right to cancel in the second part of clause 10 does not override the automatic lapsing of the agreement upon non-fulfilment of the suspensive condition. Since Mr Page did not apply for a bond nor waive the condition within the stipulated period, the agreement lapsed on 19 November 2003. The seller did not affirm the agreement, and the purchaser cannot...

Citation
[2011] ZASCA 208
Parties
Appellant: Park 2000 Development (Pty) Ltd; Respondent: Rodney Wilmot Page
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2011
Case Number
905/2010
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Appeal upheld. The agreement lapsed due to non-fulfilment of the suspensive condition. The respondent's claim is dismissed and the interdict set aside.
Judges
Brand, Maya, Mhlantla, Malan, Theron
Legal Topics
Suspensive Condition, Agreement of Sale, Waiver of Condition, Interpretation of Contract, Remedies for Breach
Commercial and Corporate Land and Property Suspensive Condition Agreement of Sale Waiver of Condition Interpretation of Contract Remedies for Breach

Case Brief

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Parties

Park 2000 Development (Pty) Ltd

Appellant

Rodney Wilmot Page

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether clause 10 of the agreement constitutes a suspensive condition or a term imposing an obligation on the purchaser.
  2. 2 Whether the agreement lapsed due to non-fulfilment of the suspensive condition.
  3. 3 Whether the purchaser could waive the condition after the cut-off date.

Ratio Decidendi

Clause 10 of the agreement is a suspensive condition solely for the benefit of the purchaser, requiring the purchaser to obtain a bond for 80% of the purchase price within seven days of signature. If the condition is not fulfilled and not waived by the purchaser before the cut-off date, the agreement lapses automatically. The seller's right to cancel in the second part of clause 10 does not override the automatic lapsing of the agreement upon non-fulfilment of the suspensive condition. Since Mr Page did not apply for a bond nor waive the condition within the stipulated period, the agreement lapsed on 19 November 2003. The seller did not affirm the agreement, and the purchaser cannot...

Court Disposition

Appeal upheld. The agreement lapsed due to non-fulfilment of the suspensive condition. The respondent's claim is dismissed and the interdict set aside.

Orders

  • The appeal is upheld with costs, including the costs of two counsel where applicable, except one half of all the costs relating to the preparation, perusal and use of the record on appeal.
  • The order of the court below is set aside and replaced with: (a) The plaintiff’s claim is dismissed with costs; (b) The interdict in case 10823/06 is set aside with costs; (c) All costs orders include the costs of two counsel where applicable.