Timber Shavings CC v Homely Property and BNB (Pty) Ltd (3357/2022) [2023] ZAECQBHC 42 (1 August 2023)

Timber Shavings CC v Homely Property and BNB (Pty) Ltd (3357/2022) [2023] ZAECQBHC 42 (1 August 2023)

The court found that the introduction of the invoice dated 19 January 2023 did not amount to amending the contract to the applicant's benefit nor did it prejudice the respondent in a manner that could not be compensated by costs. The contradiction between the applicant's earlier statement and the subsequent invoice was a matter for trial, not for determination at the amendment stage. The respondent's allegations of forgery were dismissed based on the applicant's affidavit confirming authenticity. The court held that the respondent's defence remained unaltered by the amendment and that any prejudice suffered was limited to costs, which could be addressed by an appropriate costs order. The...

Citation
[2023] ZAECQBHC 42
Parties
Applicant: Timber Shavings CC; Respondent: Homely Property and BNB (Pty) Ltd
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
1 August 2023
Case Number
3357/2022
Procedural Posture
Amendment Application / Opposed Application for Leave to Amend Particulars of Claim Under Rule 28
Outcome
Application for leave to amend granted; costs awarded as specified.
Judges
Ellis
Legal Topics
Amendment of Pleadings, Rule 28 Uniform Rules, Contractual Entitlement, Alienation of Land Act, Prejudice in Amendment, Costs Orders
Civil Procedure Commercial and Corporate Amendment of Pleadings Rule 28 Uniform Rules Contractual Entitlement Alienation of Land Act Prejudice in Amendment Costs Orders

Case Brief

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Parties

Timber Shavings CC

Applicant

Homely Property and BNB (Pty) Ltd

Respondent

Procedural Posture

Amendment Application / Opposed Application for Leave to Amend Particulars of Claim Under Rule 28

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its particulars of claim to introduce an invoice dated 19 January 2023.
  2. 2 Whether the proposed amendment would render the particulars of claim excipiable or cause prejudice to the respondent.
  3. 3 Whether the applicant is entitled to claim payment in money for services rendered in the absence of a separate deed of sale.

Ratio Decidendi

The court found that the introduction of the invoice dated 19 January 2023 did not amount to amending the contract to the applicant's benefit nor did it prejudice the respondent in a manner that could not be compensated by costs. The contradiction between the applicant's earlier statement and the subsequent invoice was a matter for trial, not for determination at the amendment stage. The respondent's allegations of forgery were dismissed based on the applicant's affidavit confirming authenticity. The court held that the respondent's defence remained unaltered by the amendment and that any prejudice suffered was limited to costs, which could be addressed by an appropriate costs order. The...

Court Disposition

Application for leave to amend granted; costs awarded as specified.

Orders

  • The application for leave to amend is granted.
  • The applicant shall deliver the amended particulars of claim no later than 10 days after the date of this order.