Rossitier and Others v Nedbank Ltd (8244/10) [2013] ZAKZPHC 13 (25 February 2013)

Rossitier and Others v Nedbank Ltd (8244/10) [2013] ZAKZPHC 13 (25 February 2013)

The court found that the applicants were aware of the procedural steps taken by Nedbank and failed to act timeously to lift the notice of bar or oppose the default judgment. The applicants had previously confessed to judgment and warranted their authority to act for the trust, and their subsequent defences regarding trustee authorization and the validity of the mortgage bonds were found to be opportunistic and lacking substance. The variation agreement expressly allowed Nedbank to prosecute the action without further notice, and the applicants' conduct indicated a tacit acknowledgment of their indebtedness. The application for rescission was not brought within a reasonable time, and the...

Citation
[2013] ZAKZPHC 13
Parties
Applicant: Terrance John Rossitier; Applicant: Terrance John Rossitier N.O; Applicant: Gail Wingrove Rossitier; Respondent: Nedbank Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
25 February 2013
Case Number
8244/10
Procedural Posture
Review Application / Application for Rescission of Default Judgment
Outcome
Application dismissed with costs on an attorney and client scale, payable jointly and severally by the applicants.
Judges
D Pillay
Legal Topics
Rescission of Default Judgment, Notice of Bar, Variation Agreement, Trustee Authority, Mortgage Bond Validity
Civil Procedure Banking and Finance Rescission of Default Judgment Notice of Bar Variation Agreement Trustee Authority Mortgage Bond Validity

Case Brief

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Parties

Terrance John Rossitier

Applicant

Terrance John Rossitier N.O

Applicant

Gail Wingrove Rossitier

Applicant

Nedbank Limited

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously sought and granted in the absence of the applicants.
  2. 2 Whether Nedbank complied with the practice directive and procedural rules regarding notice for default judgment.
  3. 3 Whether the applicants waived their right to notice by virtue of the variation agreement.

Ratio Decidendi

The court found that the applicants were aware of the procedural steps taken by Nedbank and failed to act timeously to lift the notice of bar or oppose the default judgment. The applicants had previously confessed to judgment and warranted their authority to act for the trust, and their subsequent defences regarding trustee authorization and the validity of the mortgage bonds were found to be opportunistic and lacking substance. The variation agreement expressly allowed Nedbank to prosecute the action without further notice, and the applicants' conduct indicated a tacit acknowledgment of their indebtedness. The application for rescission was not brought within a reasonable time, and the...

Court Disposition

Application dismissed with costs on an attorney and client scale, payable jointly and severally by the applicants.

Orders

  • The application for rescission is dismissed.
  • Costs are awarded against the applicants on an attorney and client scale, payable jointly and severally, the one paying the others to be absolved.