Travelex Limited v Maloney and Another (28866/2014) [2015] ZAGPPHC 739 (22 July 2015)

Travelex Limited v Maloney and Another (28866/2014) [2015] ZAGPPHC 739 (22 July 2015)

The court found that the applicant did not seek rescission but rather the setting aside of the attachment order. The applicant had been served with the application and its counsel was present in court but chose not to oppose the order. The explanation for its default, namely erroneous legal advice, was found to be unsatisfactory, unreasonable, and indicative of reckless and wilful disregard for court processes. The requirements for rescission under Rule 42 and common law were not met, as there was no fraud, justus error, or sufficient cause. The applicant was held to have waived its rights and was estopped from challenging the order. The application was dismissed with costs, including the...

Citation
[2015] ZAGPPHC 739
Parties
Applicant: Travelex Limited; Respondent: Sean Maloney; Respondent: Gillian Maloney
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 July 2015
Case Number
28866/2014
Procedural Posture
Urgent Application / Application to Set Aside Attachment Order and Related Relief
Outcome
Application dismissed with costs, including costs of two counsels.
Judges
M J Teffo
Legal Topics
Attachment of Shares, Arbitration Clause Enforcement, Rescission of Order, Jurisdiction, Waiver of Rights
Civil Procedure Commercial and Corporate Attachment of Shares Arbitration Clause Enforcement Rescission of Order Jurisdiction Waiver of Rights

Case Brief

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Parties

Travelex Limited

Applicant

Sean Maloney

Respondent

Gillian Maloney

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Attachment Order and Related Relief

Legal Issues

  1. 1 Whether the applicant is entitled to have the attachment order of its shares set aside.
  2. 2 Whether the applicant's failure to oppose the original attachment order precludes it from challenging the order.
  3. 3 Whether the application meets the requirements for rescission under Rule 42 or common law.

Ratio Decidendi

The court found that the applicant did not seek rescission but rather the setting aside of the attachment order. The applicant had been served with the application and its counsel was present in court but chose not to oppose the order. The explanation for its default, namely erroneous legal advice, was found to be unsatisfactory, unreasonable, and indicative of reckless and wilful disregard for court processes. The requirements for rescission under Rule 42 and common law were not met, as there was no fraud, justus error, or sufficient cause. The applicant was held to have waived its rights and was estopped from challenging the order. The application was dismissed with costs, including the...

Court Disposition

Application dismissed with costs, including costs of two counsels.

Orders

  • The application is dismissed with costs, which costs include costs attendant upon the employment of two counsels.