Tarspray CC v Ashalt Services CC (A5061/2016) [2017] ZAGPJHC 307 (8 November 2017)

Tarspray CC v Ashalt Services CC (A5061/2016) [2017] ZAGPJHC 307 (8 November 2017)

The court found, on a balance of probabilities, that the contract was concluded between the appellant and the respondent, not between the respondent and Tarfix. This was supported by direct witness evidence, documentary correspondence, and conduct of the parties. The respondent accepted the appellant’s breach on 11 October 2009, which terminated the contract. The respondent was entitled to payment for work completed and standing time accrued up to the date of termination, but not for pre-coated stone delivered after the breach, as this constituted a claim for damages rather than an accrued contractual right. The quantum awarded by the court a quo was varied to reflect the correct...

Citation
[2017] ZAGPJHC 307
Parties
Appellant: Tarspray CC; Respondent: Asphalt Services CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 November 2017
Case Number
A5061/2016
Procedural Posture
Civil Appeal / Appeal From Judgment of Makgoka J; Cross Appeal on Quantum
Outcome
Appeal dismissed except for reduction of award for pre-coated stone; cross-appeal allowed in part; quantum varied; set-off applied; costs and interest awarded.
Judges
Mavundla, Wepener, Twala
Legal Topics
Breach of Contract, Quantum of Damages, Set Off, Standing Time, Accrued Rights
Commercial and Corporate Civil Procedure Breach of Contract Quantum of Damages Set Off Standing Time Accrued Rights

Case Brief

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Parties

Tarspray CC

Appellant

Asphalt Services CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Makgoka J; Cross Appeal on Quantum

Legal Issues

  1. 1 Was the contract concluded between the appellant and respondent, or between respondent and Tarfix?
  2. 2 Is the respondent entitled to payment for work completed, standing time, and pre-coated stone delivered after acceptance of breach?
  3. 3 Should the quantum awarded by the court a quo be varied based on the correct measurement and calculation of completed work and damages?

Ratio Decidendi

The court found, on a balance of probabilities, that the contract was concluded between the appellant and the respondent, not between the respondent and Tarfix. This was supported by direct witness evidence, documentary correspondence, and conduct of the parties. The respondent accepted the appellant’s breach on 11 October 2009, which terminated the contract. The respondent was entitled to payment for work completed and standing time accrued up to the date of termination, but not for pre-coated stone delivered after the breach, as this constituted a claim for damages rather than an accrued contractual right. The quantum awarded by the court a quo was varied to reflect the correct...

Court Disposition

Appeal dismissed except for reduction of award for pre-coated stone; cross-appeal allowed in part; quantum varied; set-off applied; costs and interest awarded.

Orders

  • The appeal is dismissed with costs except as varied regarding the quantum.
  • The appellant is to pay the costs occasioned by the inclusion of volumes 2 and 9 to 19 of the appeal record on an attorney and client scale.