Sumelar Ontwikkelings (Pty) Ltd v HTF Developers (Pty) Ltd (22587/08) [2008] ZAGPHC 247; 2008 (6) SA 650 (T) (7 August 2008)

Sumelar Ontwikkelings (Pty) Ltd v HTF Developers (Pty) Ltd (22587/08) [2008] ZAGPHC 247; 2008 (6) SA 650 (T) (7 August 2008)

The court found that the defendant's defence, though not precisely formulated, consists of two legs: first, that RVK may only recover fees and disbursements after all bills of cost for the entire mandate have been taxed, and second, that the defendant is entitled to set-off payments already made against the amounts claimed in the taxed bill. The court held that there is no principle barring recovery of taxed fees in one court absent taxation in others, unless an agreement exists to that effect. The defendant's affidavit raises the existence of such an agreement, which, if proven, would constitute a valid defence. Furthermore, the possibility of set-off exists if the defendant's payments...

Citation
[2008] ZAGPHC 247
Parties
Applicant: Sumelar Ontwikkelings (Pty) Ltd; Respondent: HTF Developers (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
7 August 2008
Case Number
22587/08
Procedural Posture
Summary Judgment Application / Opposed Application for Summary Judgment
Outcome
Summary judgment is refused. The defendant is granted leave to defend the action.
Judges
Murphy
Legal Topics
Summary Judgment, Taxed Bill of Costs, Cession of Claim, Set Off, Attorney Client Fees
Civil Procedure Summary Judgment Taxed Bill of Costs Cession of Claim Set Off Attorney Client Fees

Case Brief

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Parties

Sumelar Ontwikkelings (Pty) Ltd

Applicant

HTF Developers (Pty) Ltd

Respondent

Procedural Posture

Summary Judgment Application / Opposed Application for Summary Judgment

Legal Issues

  1. 1 Whether the defendant has disclosed a bona fide defence sufficient to resist summary judgment.
  2. 2 Whether an attorney may recover fees and disbursements taxed in one court without taxing bills for services rendered in other courts.
  3. 3 Whether the defendant is entitled to set-off payments made against the amounts claimed in the taxed bill of costs.

Ratio Decidendi

The court found that the defendant's defence, though not precisely formulated, consists of two legs: first, that RVK may only recover fees and disbursements after all bills of cost for the entire mandate have been taxed, and second, that the defendant is entitled to set-off payments already made against the amounts claimed in the taxed bill. The court held that there is no principle barring recovery of taxed fees in one court absent taxation in others, unless an agreement exists to that effect. The defendant's affidavit raises the existence of such an agreement, which, if proven, would constitute a valid defence. Furthermore, the possibility of set-off exists if the defendant's payments...

Court Disposition

Summary judgment is refused. The defendant is granted leave to defend the action.

Orders

  • The defendant is granted leave to defend the action.
  • Costs of the application are to be costs in the cause.