Riverspray Lifestyle Estate (Pty) Ltd v Auby (61073/2009) [2010] ZAGPPHC 99 (1 September 2010)

Riverspray Lifestyle Estate (Pty) Ltd v Auby (61073/2009) [2010] ZAGPPHC 99 (1 September 2010)

The court found that the suspensive condition requiring the respondent to obtain a mortgage bond for R735,000 within twenty-one days of signing the contract was not fulfilled. The applicant did not allege or prove that it extended the period for fulfillment of the suspensive condition as required by the contract....

Source-derived case information.

Citation
[2010] ZAGPPHC 99
Parties
Applicant: Riverspray Lifestyle Estate (Pty) Ltd; Respondent: Warwick Mark Auby
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 September 2010
Case Number
61073/2009
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed; counter-application upheld.
Judges
Prinsloo
Legal Topics
Alienation of Land Act, Sectional Titles Act, Suspensive Conditions, Specific Performance, Contractual Vagueness
Land and Property Civil Procedure Alienation of Land Act Sectional Titles Act Suspensive Conditions Specific Performance Contractual Vagueness

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Parties

Riverspray Lifestyle Estate (Pty) Ltd

Applicant

Warwick Mark Auby

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the suspensive condition relating to the granting of a mortgage bond was fulfilled within the stipulated period.
  2. 2 Whether the contract lapsed due to the deposit not being paid within the required three days.
  3. 3 Whether the contract is voidable at the instance of the respondent due to non-disclosure of the participation quota as required by the Sectional Titles Act.

Ratio Decidendi

The court found that the suspensive condition requiring the respondent to obtain a mortgage bond for R735,000 within twenty-one days of signing the contract was not fulfilled. The applicant did not allege or prove that it extended the period for fulfillment of the suspensive condition as required by the contract. The subsequent securing of a lesser bond and the proposed cash payment for the shortfall did not satisfy the suspensive condition. Additionally, the contract stipulated that the deposit must be paid within three days of signature, failing which the contract would automatically lapse; the respondent paid the deposit late. The contract was also voidable at the respondent's instance...

Court Disposition

Application dismissed; counter-application upheld.

Orders

  • The application is dismissed.
  • The counter-application is upheld, and the applicant is ordered to pay the respondent the sum of R15,000 plus interest of 15.5% per annum calculated from the date of this order.