Philpott v Usher NO and Others (5031/2012) [2013] ZAKZPHC 1 (16 January 2013)

Philpott v Usher NO and Others (5031/2012) [2013] ZAKZPHC 1 (16 January 2013)

The court found that the agreement of sale (Annexure FA7) was subject to suspensive conditions, specifically the sale of shares by Basson by 31 October 2011. These conditions were not fulfilled, and there was no evidence of waiver by the applicant prior to the date for fulfilment. The correspondence and conduct relied upon by the respondents did not amount to a clear or unequivocal waiver, and any purported waiver after the date for fulfilment was ineffective as the right no longer existed. Consequently, the agreement lapsed, the applicant was entitled to a refund of the deposit, and the fourth respondent was not entitled to commission. The applicant’s request for a declaration that the...

Citation
[2013] ZAKZPHC 1
Parties
Applicant: Cynthia Philpott; Respondent: Glen Vivian Usher N.O.; Respondent: Nomathamsanqa Nonhlanhla Mabaso N.O.; Respondent: Burt Silverston Laing N.O.; Respondent: Wakefields Real Estate (Proprietary) Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
16 January 2013
Case Number
5031/2012
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted in part; agreement declared to have lapsed, deposit to be refunded, no commission due, costs awarded against respondents jointly and severally; counter application dismissed.
Judges
Koen
Legal Topics
Suspensive Condition, Estate Agents Commission, Contract Interpretation, Waiver of Rights, Deposit Refund, Rectification
Land and Property Commercial and Corporate Civil Procedure Suspensive Condition Estate Agents Commission Contract Interpretation Waiver of Rights Deposit Refund +1 more

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Parties

Cynthia Philpott

Applicant

Glen Vivian Usher N.O.

Respondent

Nomathamsanqa Nonhlanhla Mabaso N.O.

Respondent

Burt Silverston Laing N.O.

Respondent

Wakefields Real Estate (Proprietary) Limited

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the agreement of sale dated 26 August 2011 (Annexure FA7) lapsed due to non-fulfilment of suspensive conditions.
  2. 2 Whether the applicant is entitled to a refund of the deposit paid under the agreement.
  3. 3 Whether the fourth respondent is entitled to claim estate agents’ commission from the applicant.

Ratio Decidendi

The court found that the agreement of sale (Annexure FA7) was subject to suspensive conditions, specifically the sale of shares by Basson by 31 October 2011. These conditions were not fulfilled, and there was no evidence of waiver by the applicant prior to the date for fulfilment. The correspondence and conduct relied upon by the respondents did not amount to a clear or unequivocal waiver, and any purported waiver after the date for fulfilment was ineffective as the right no longer existed. Consequently, the agreement lapsed, the applicant was entitled to a refund of the deposit, and the fourth respondent was not entitled to commission. The applicant’s request for a declaration that the...

Court Disposition

Application granted in part; agreement declared to have lapsed, deposit to be refunded, no commission due, costs awarded against respondents jointly and severally; counter application dismissed.

Orders

  • The agreement of sale dated 26 August 2011 (Annexure FA7) is declared to have lapsed and to be of no force and effect (without the words 'void ab origine').
  • The first to third respondents are ordered to instruct Lynn & Main Attorneys to refund the applicant’s deposit of R500,000.00, together with any accrued interest, within five days.