Shaw v Vertue and Others (5217/2019) [2020] ZAWCHC 195 (7 December 2020)

Shaw v Vertue and Others (5217/2019) [2020] ZAWCHC 195 (7 December 2020)

The court found that the purchaser's obligation under the deed of sale was to pay the full purchase price to the seller in cash against transfer. The conveyancer was appointed by the purchaser and there was no evidence of a mandate from the seller authorising the conveyancer to act as his agent for receipt of payment. Payment into the conveyancer's trust account did not discharge the purchaser's obligation to the seller, especially since the funds were paid into a fraudulent account due to the conveyancer's error. The purchaser's defence that she was not liable was rejected, as the deed of sale did not alter her primary obligation. The court held that the purchaser remains liable for the...

Citation
[2020] ZAWCHC 195
Parties
Applicant: Brain Shaw; Respondent: Lizl Vertue; Respondent: Gous Vertue & Associates Incorporated; Respondent: ABSA Home Loans Guarantee Co (RF) (Pty) Ltd; Respondent: The Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 December 2020
Case Number
5217/2019
Procedural Posture
Civil Application / Opposed Motion for Payment of Purchase Price
Outcome
Application granted. Purchaser ordered to pay the outstanding balance of the purchase price to the seller, with interest and costs. Ancillary orders for cancellation and re-transfer of property if payment is not made.
Judges
Fortuin
Legal Topics
Sale of Immovable Property, Mandate and Agency, Payment Obligation, Role of Conveyancer, Security for Purchase Price
Land and Property Civil Procedure Sale of Immovable Property Mandate and Agency Payment Obligation Role of Conveyancer Security for Purchase Price

Case Brief

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Parties

Brain Shaw

Applicant

Lizl Vertue

Respondent

Gous Vertue & Associates Incorporated

Respondent

ABSA Home Loans Guarantee Co (RF) (Pty) Ltd

Respondent

The Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Civil Application / Opposed Motion for Payment of Purchase Price

Legal Issues

  1. 1 Whether the purchaser discharged her obligation to pay the purchase price by paying into the conveyancer's trust account.
  2. 2 Whether the conveyancer was authorised by the seller to receive and disburse the purchase price on his behalf.
  3. 3 Whether the purchaser remains liable to the seller for the unpaid portion of the purchase price after payment was made to a fraudulent account.

Ratio Decidendi

The court found that the purchaser's obligation under the deed of sale was to pay the full purchase price to the seller in cash against transfer. The conveyancer was appointed by the purchaser and there was no evidence of a mandate from the seller authorising the conveyancer to act as his agent for receipt of payment. Payment into the conveyancer's trust account did not discharge the purchaser's obligation to the seller, especially since the funds were paid into a fraudulent account due to the conveyancer's error. The purchaser's defence that she was not liable was rejected, as the deed of sale did not alter her primary obligation. The court held that the purchaser remains liable for the...

Court Disposition

Application granted. Purchaser ordered to pay the outstanding balance of the purchase price to the seller, with interest and costs. Ancillary orders for cancellation and re-transfer of property if payment is not made.

Orders

  • The purchaser (first respondent) is to pay to the seller (applicant) the amount of R3,315,992.74.
  • Interest on the aforesaid amount at the prescribed rate of 10.25% per annum from 12 October 2018 until date of payment.