Sun International Management Limited and Another v Georgious N.O. and Others (3125/2014) [2015] ZAFSHC 122 (25 June 2015)

Sun International Management Limited and Another v Georgious N.O. and Others (3125/2014) [2015] ZAFSHC 122 (25 June 2015)

The court found that the plaintiffs do not rely on any written contract, but only on a tacit contract, the terms of which are embodied in the unsigned Operating Management Agreement. The amendment does not introduce the tacit agreement, as the particulars of claim in their original form already contained it. The court held that it cannot be said the particulars of claim as amended will be excipiable, and the need for amendment was brought about by mistakes made by the plaintiffs. There was no evidence of bad faith or unreasonable opposition by the defendants. Accordingly, the application to amend was granted, with costs awarded against the plaintiffs.

Citation
[2015] ZAFSHC 122
Parties
Plaintiff: Sun International Management Limited; Plaintiff: Mangaung Sun Proprietary Limited; Defendant: Nicolas Georgiou N.O.; Defendant: Maureen Lynette Georgiou N.O.; Defendant: Joe Chemaly N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 June 2015
Case Number
3125/2014
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim
Outcome
Plaintiffs' application to amend is granted. Plaintiffs are ordered to pay the costs of this application.
Judges
Kruger
Legal Topics
Amendment of Pleadings, Tacit Contract, Vagueness and Embarrassment, Exception Procedure
Civil Procedure Commercial and Corporate Amendment of Pleadings Tacit Contract Vagueness and Embarrassment Exception Procedure

Case Brief

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Parties

Sun International Management Limited

Plaintiff

Mangaung Sun Proprietary Limited

Plaintiff

Nicolas Georgiou N.O.

Defendant

Maureen Lynette Georgiou N.O.

Defendant

Joe Chemaly N.O.

Defendant

Procedural Posture

Civil Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs should be granted leave to amend their particulars of claim.
  2. 2 Whether the proposed amendment would render the particulars of claim excipiable due to vagueness or contradiction with written agreements.
  3. 3 Whether the particulars of claim as amended would prejudice the defendants.

Ratio Decidendi

The court found that the plaintiffs do not rely on any written contract, but only on a tacit contract, the terms of which are embodied in the unsigned Operating Management Agreement. The amendment does not introduce the tacit agreement, as the particulars of claim in their original form already contained it. The court held that it cannot be said the particulars of claim as amended will be excipiable, and the need for amendment was brought about by mistakes made by the plaintiffs. There was no evidence of bad faith or unreasonable opposition by the defendants. Accordingly, the application to amend was granted, with costs awarded against the plaintiffs.

Court Disposition

Plaintiffs' application to amend is granted. Plaintiffs are ordered to pay the costs of this application.

Orders

  • Plaintiffs’ application to amend is granted.
  • Plaintiffs are ordered to pay the costs of this application.