South African Permanent Building Society v Powell and Others (480/84) [1985] ZASCA 123; [1986] 1 ALL SA 519 (A) (26 November 1985)

South African Permanent Building Society v Powell and Others (480/84) [1985] ZASCA 123; [1986] 1 ALL SA 519 (A) (26 November 1985)

The Supreme Court of Appeal held that, in the absence of any facts indicating inequity, oppression, or improper conduct by the appellant, the court a quo erred in refusing to award attorney and client costs as agreed in the mortgage bonds. The court confirmed that while it retains a residual discretion to disregard...

Source-derived case information.

Citation
[1985] ZASCA 123
Parties
Appellant: South African Permanent Building Society; Respondent: D R Powell; Respondent: J H Fischer; Respondent: G S Shaerer
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 1985
Case Number
480/84
Procedural Posture
Civil Appeal / Appeal From Default Judgment in the Witwatersrand Local Division
Outcome
Appeal allowed. Costs order amended to award attorney and client costs as agreed in the mortgage bonds. No order as to costs of appeal.
Judges
Miller, Joubert, Trengove, Boshoff, Nicholas
Legal Topics
Costs Award, Attorney and Client Scale, Default Judgment, Enforceability of Costs Agreement
Civil Procedure Banking and Finance Costs Award Attorney and Client Scale Default Judgment Enforceability of Costs Agreement

Source-derived case record

Summary, issues, holding and outcome

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Parties

South African Permanent Building Society

Appellant

D R Powell

Respondent

J H Fischer

Respondent

G S Shaerer

Respondent

Procedural Posture

Civil Appeal / Appeal From Default Judgment in the Witwatersrand Local Division

Legal Issues

  1. 1 Whether a court may refuse to award attorney and client costs where parties have agreed to such costs in a mortgage bond.
  2. 2 Whether the court retains a residual discretion to disregard an agreement on costs between the parties.
  3. 3 Whether the absence of opposition or additional facts justifies the court in ignoring the costs agreement.

Ratio Decidendi

The Supreme Court of Appeal held that, in the absence of any facts indicating inequity, oppression, or improper conduct by the appellant, the court a quo erred in refusing to award attorney and client costs as agreed in the mortgage bonds. The court confirmed that while it retains a residual discretion to disregard costs agreements, such discretion must be exercised judicially and only for substantial reasons. The mere fact that the matter was undefended and proceeded as a default judgment does not justify ignoring the costs agreement. The burden is on the defendant to raise and substantiate any grounds for refusing the agreed costs. In this case, no such grounds existed, and the refusal...

Court Disposition

Appeal allowed. Costs order amended to award attorney and client costs as agreed in the mortgage bonds. No order as to costs of appeal.

Orders

  • The order as to costs made by the court a quo is amended in respect of each respondent by substituting 'on the scale as between attorney and client' for 'on the scale as between party and party'.
  • There will be no order as to the costs of appeal.