Paymate (Pty) Ltd v Louis and Another (13927/2009) [2015] ZAWCHC 33 (27 March 2015)

Paymate (Pty) Ltd v Louis and Another (13927/2009) [2015] ZAWCHC 33 (27 March 2015)

The plaintiff failed to discharge the onus of proving the terms of the mandate agreement as alleged. Vernetti, acting for the plaintiff, did not convey his intention to the defendant to retain the deposit until presentation of a bill of lading. The defendant's version, supported by an independent witness, was that he was instructed to pay the deposit into his trust account and transfer the funds to Hong Kong as soon as possible, taking instructions from Somerville. There was no evidence that the defendant was made aware of the specific terms of the written agreement or required to act in accordance with it. The alternative claim based on breach of legal duty also failed, as the defendant...

Citation
[2015] ZAWCHC 33
Parties
Plaintiff: Paymate (Pty) Ltd; Defendant: Louis Joseph Herbert; Third Party: Desmond Alexander Somerville
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 March 2015
Case Number
13927/2009
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim dismissed with costs.
Judges
J I Cloete
Legal Topics
Mandate Agreement, Attorney Trust Account, Negligence, Legal Duty, Onus of Proof
Commercial and Corporate Civil Procedure Mandate Agreement Attorney Trust Account Negligence Legal Duty Onus of Proof

Case Brief

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Parties

Paymate (Pty) Ltd

Plaintiff

Louis Joseph Herbert

Defendant

Desmond Alexander Somerville

Third Party

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 What were the terms of the defendant's mandate regarding the deposit held in trust.
  2. 2 Did the defendant breach his mandate or legal duty by paying out the deposit without proper instruction.
  3. 3 Was the defendant negligent in administering the deposit.

Ratio Decidendi

The plaintiff failed to discharge the onus of proving the terms of the mandate agreement as alleged. Vernetti, acting for the plaintiff, did not convey his intention to the defendant to retain the deposit until presentation of a bill of lading. The defendant's version, supported by an independent witness, was that he was instructed to pay the deposit into his trust account and transfer the funds to Hong Kong as soon as possible, taking instructions from Somerville. There was no evidence that the defendant was made aware of the specific terms of the written agreement or required to act in accordance with it. The alternative claim based on breach of legal duty also failed, as the defendant...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs, including any reserved costs orders.