Stander and Others v Schwulst and Others (6375/07 & 12461/07) [2007] ZAWCHC 50; 2008 (1) SA 81 (C) (21 September 2007)

Stander and Others v Schwulst and Others (6375/07 & 12461/07) [2007] ZAWCHC 50; 2008 (1) SA 81 (C) (21 September 2007)

The court held that trustees facing removal are sued in their personal capacity, and any indemnity from the trust estate for legal costs is only available if their opposition is ultimately found to be proper and reasonable. Pre-emptive costs orders in favour of trustees are fundamentally misconceived and contrary to South African and Commonwealth authority. The trustees' application for advance funding of their defence from the trust estate was dismissed, as such indemnity can only be determined after the merits are decided. The court further found no justification for the trustees' delay in filing answering affidavits and refused to grant an extension of time, ordering them to file...

Citation
[2007] ZAWCHC 50
Parties
Applicant: Annebelle Jean Stander; Applicant: Melissa Jane Stander; Applicant: Justin Edwards Stander; Applicant: Imogen Eileen Miramadi; Respondent: Dennis Arthur Schwulst; Respondent: Nicholas Norman Campbell Louw; Respondent: Michael Malcolm Anderson; Respondent: The Master of the Above Court; Respondent: Kamram Miramadi; Respondent: David Melunsky
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 September 2007
Case Number
6375/07 & 12461/07
Procedural Posture
Civil Application / Interlocutory Applications for Costs and Intervention, Pending Main Removal Application
Outcome
Costs and intervention applications dismissed. Trustees ordered to pay costs personally and to file answering affidavits within 15 days.
Judges
NC Erasmus
Legal Topics
Trustee Removal, Costs Awards, Trustee Indemnity, Extension of Time, Joinder of Parties
Land and Property Civil Procedure Trustee Removal Costs Awards Trustee Indemnity Extension of Time Joinder of Parties

Case Brief

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Parties

Annebelle Jean Stander

Applicant

Melissa Jane Stander

Applicant

Justin Edwards Stander

Applicant

Imogen Eileen Miramadi

Applicant

Dennis Arthur Schwulst

Respondent

Nicholas Norman Campbell Louw

Respondent

Michael Malcolm Anderson

Respondent

The Master of the Above Court

Respondent

Kamram Miramadi

Respondent

David Melunsky

Respondent

Procedural Posture

Civil Application / Interlocutory Applications for Costs and Intervention, Pending Main Removal Application

Legal Issues

  1. 1 Whether trustees facing removal may pre-emptively recover their legal costs from the trust estate before the merits are decided.
  2. 2 Whether trustees should be cited in their personal or representative capacities in removal proceedings.
  3. 3 Whether the court should grant an extension of time for trustees to file answering affidavits in the main removal application.

Ratio Decidendi

The court held that trustees facing removal are sued in their personal capacity, and any indemnity from the trust estate for legal costs is only available if their opposition is ultimately found to be proper and reasonable. Pre-emptive costs orders in favour of trustees are fundamentally misconceived and contrary to South African and Commonwealth authority. The trustees' application for advance funding of their defence from the trust estate was dismissed, as such indemnity can only be determined after the merits are decided. The court further found no justification for the trustees' delay in filing answering affidavits and refused to grant an extension of time, ordering them to file...

Court Disposition

Costs and intervention applications dismissed. Trustees ordered to pay costs personally and to file answering affidavits within 15 days.

Orders

  • The costs and intervention applications are dismissed.
  • First and second respondents are jointly and severally to pay applicants and sixth respondent's costs, including costs for two counsel and wasted costs for the appearance on 23 August 2007.