Prevance Capital (Pty) Ltd v Muller t/a Muller en Vennote (2998/2013) [2014] ZAFSHC 66 (15 May 2014)

Prevance Capital (Pty) Ltd v Muller t/a Muller en Vennote (2998/2013) [2014] ZAFSHC 66 (15 May 2014)

The court held that the respondent attorney was only liable to pay the applicant from the actual proceeds of the sale received, after deduction of all expenses necessary for transfer, including both mortgage bonds, agent's commission, and clearance certificate fees. The respondent was not a party to the Discount of Sale Proceeds Agreement and only signed the letter of undertaking, which did not bind him to the figures in the Information Schedule. The existence of a second bond, though not listed in the Information Schedule, was not the respondent's fault and had to be paid to effect transfer. The applicant failed to prove entitlement to any remaining amount, as the respondent paid the...

Citation
[2014] ZAFSHC 66
Parties
Applicant: Prevance Capital (Pty) Ltd; Respondent: Wouter Johannes Andries Muller t/a Muller en Vennote
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 May 2014
Case Number
2998/2013
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
Kruger
Legal Topics
Interpretation of Contracts, Undertakings by Attorneys, Sale of Fixed Property, Mortgage Bond Cancellation, Deeds Registries Act, Conveyancing Liability
Land and Property Civil Procedure Interpretation of Contracts Undertakings by Attorneys Sale of Fixed Property Mortgage Bond Cancellation Deeds Registries Act Conveyancing Liability

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Parties

Prevance Capital (Pty) Ltd

Applicant

Wouter Johannes Andries Muller t/a Muller en Vennote

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 How should the term 'proceeds' in the letter of undertaking be interpreted in the context of the sale and transfer of fixed property.
  2. 2 Is the respondent attorney personally liable to pay the applicant any amount from the sale proceeds, given the deductions for bonds and expenses.
  3. 3 Does the exclusion of the second mortgage bond from the Information Schedule affect the respondent's liability to the applicant.

Ratio Decidendi

The court held that the respondent attorney was only liable to pay the applicant from the actual proceeds of the sale received, after deduction of all expenses necessary for transfer, including both mortgage bonds, agent's commission, and clearance certificate fees. The respondent was not a party to the Discount of Sale Proceeds Agreement and only signed the letter of undertaking, which did not bind him to the figures in the Information Schedule. The existence of a second bond, though not listed in the Information Schedule, was not the respondent's fault and had to be paid to effect transfer. The applicant failed to prove entitlement to any remaining amount, as the respondent paid the...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.