Tudor Engineering and Draughting CC v Fortitude Technology Group (PTY) Ltd and Another (27017/18) [2018] ZAGPPHC 681 (21 September 2018)

Tudor Engineering and Draughting CC v Fortitude Technology Group (PTY) Ltd and Another (27017/18) [2018] ZAGPPHC 681 (21 September 2018)

The court found that the defendant's affidavit disclosed a bona fide defence based on the alleged subsequent oral agreement regarding payment from the sale proceeds of the pilot plant. This defence raised a factual dispute that could not be resolved on the papers and constituted a triable issue. The plaintiff did not have an opportunity to respond to these averments due to the summary judgment procedure. As a result, the court held that summary judgment should be refused, and the defendant should be granted leave to defend the claim. The costs were ordered to be costs in the cause.

Citation
[2018] ZAGPPHC 681
Parties
Plaintiff: Tudor Engineering and Draughting CC; Defendant: Fortitude Technology Group (PTY) Ltd; Defendant: Jaquar Equipment Services (PTY) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 September 2018
Case Number
27017/18
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Under Rule 32(2) of the Uniform Rules of Court
Outcome
Summary judgment refused; defendant granted leave to defend.
Judges
M J Mosopa
Legal Topics
Summary Judgment, Verbal Contract, Bona Fide Defence, Triable Issue
Civil Procedure Commercial and Corporate Summary Judgment Verbal Contract Bona Fide Defence Triable Issue

Case Brief

Summary, issues, holding and outcome

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Parties

Tudor Engineering and Draughting CC

Plaintiff

Fortitude Technology Group (PTY) Ltd

Defendant

Jaquar Equipment Services (PTY) Ltd

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Under Rule 32(2) of the Uniform Rules of Court

Legal Issues

  1. 1 Whether the defendant has disclosed a bona fide defence to the plaintiff's claim for payment under a verbal contract.
  2. 2 Whether the defendant's affidavit raises a triable issue sufficient to defeat summary judgment.
  3. 3 Whether the alleged subsequent oral agreement constitutes a valid defence to the claim.

Ratio Decidendi

The court found that the defendant's affidavit disclosed a bona fide defence based on the alleged subsequent oral agreement regarding payment from the sale proceeds of the pilot plant. This defence raised a factual dispute that could not be resolved on the papers and constituted a triable issue. The plaintiff did not have an opportunity to respond to these averments due to the summary judgment procedure. As a result, the court held that summary judgment should be refused, and the defendant should be granted leave to defend the claim. The costs were ordered to be costs in the cause.

Court Disposition

Summary judgment refused; defendant granted leave to defend.

Orders

  • The defendant is granted leave to defend the plaintiff's claim.
  • Costs to be costs in the cause.