Perumal v Bayett and Another (14337/2007) [2009] ZAKZDHC 40 (31 August 2009)

Perumal v Bayett and Another (14337/2007) [2009] ZAKZDHC 40 (31 August 2009)

The court found that the applicant was under a unilateral error induced by the misrepresentation created by the sign board and advertisement, which led him to believe he was bidding on a different property than the one actually sold. This error was iustus, as it was caused by the respondents' conduct. The court held that no consensus ad idem was reached, rendering the sale agreement void ab initio. The voetstoots and waiver clauses in the agreement did not preclude the applicant from relying on the mistake, as the error went to the identity of the subject matter of the contract. The applicant was entitled to a refund of the amount paid, and the respondents were ordered to pay the costs...

Citation
[2009] ZAKZDHC 40
Parties
Applicant: Nadaraj Narainsamy Perumal; Respondent: J G Bayett; Respondent: Auction Alliance KZN (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
31 August 2009
Case Number
14337/2007
Procedural Posture
Review Application / Judgment
Outcome
Application granted; sale agreement declared void ab initio; applicant entitled to refund; respondents to pay costs jointly and severally.
Judges
Mokgohloa
Legal Topics
Unilateral Mistake, Misrepresentation, Error in Corpore, Contract Voidness, Auction Sale, Voetstoots Clause
Land and Property Civil Procedure Unilateral Mistake Misrepresentation Error in Corpore Contract Voidness Auction Sale Voetstoots Clause

Case Brief

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Parties

Nadaraj Narainsamy Perumal

Applicant

J G Bayett

Respondent

Auction Alliance KZN (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant was induced to enter into the sale agreement by a unilateral error caused by misrepresentation regarding the property location.
  2. 2 Whether the sale agreement is void ab initio due to lack of consensus ad idem between the parties.
  3. 3 Whether the voetstoots and waiver clauses in the sale agreement preclude the applicant from relying on the mistake.

Ratio Decidendi

The court found that the applicant was under a unilateral error induced by the misrepresentation created by the sign board and advertisement, which led him to believe he was bidding on a different property than the one actually sold. This error was iustus, as it was caused by the respondents' conduct. The court held that no consensus ad idem was reached, rendering the sale agreement void ab initio. The voetstoots and waiver clauses in the agreement did not preclude the applicant from relying on the mistake, as the error went to the identity of the subject matter of the contract. The applicant was entitled to a refund of the amount paid, and the respondents were ordered to pay the costs...

Court Disposition

Application granted; sale agreement declared void ab initio; applicant entitled to refund; respondents to pay costs jointly and severally.

Orders

  • The agreement between the applicant and the first respondent signed on 18 September 2007 is declared void and of no force and effect.
  • The second respondent is directed to pay to the applicant the sum of R303,400.00.