Ultimate Raft Foundation Design Solution CC and Another v Foxlake Investments (Pty) Ltd and Another (40956/12) [2014] ZAGPPHC 1011 (19 December 2014)

Ultimate Raft Foundation Design Solution CC and Another v Foxlake Investments (Pty) Ltd and Another (40956/12) [2014] ZAGPPHC 1011 (19 December 2014)

The court found that the plaintiffs' earlier unopposed amendment, which replaced 't/a' with 'alternatively', effectively allowed either Foxlake Investments (Pty) Ltd or Foxway Developments (Pty) Ltd to be the first defendant. Any substitution occurred at that stage, and the current objection by the first defendant was foregone and belated. The court held that the requirements of section 15(1) of the Prescription Act, 1969 were met when the summons was served at the shared address, regardless of the citation error. The plaintiffs' error was due to gross negligence by their attorneys, but this did not warrant refusal of the amendment. However, the plaintiffs should bear the costs occasioned...

Citation
[2014] ZAGPPHC 1011
Parties
Applicant: Ultimate Raft Foundation Design Solutions CC; Applicant: T/A Ultimate Raft Design; Respondent: Foxlake Investments (Pty) Ltd; Respondent: T/A Foxway Developments (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 December 2014
Case Number
40956/12
Procedural Posture
Interlocutory Application / Application for Leave to Amend Particulars of Claim
Outcome
Application granted; leave to amend particulars of claim as set out in the notice of intention to amend dated 22 August 2013. Costs awarded against the applicants in favour of the first respondent.
Judges
Strydom
Legal Topics
Amendment of Pleadings, Misnomer Vs Substitution, Prescription Interruption, Costs Orders
Civil Procedure Amendment of Pleadings Misnomer Vs Substitution Prescription Interruption Costs Orders

Case Brief

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Parties

Ultimate Raft Foundation Design Solutions CC

Applicant

T/A Ultimate Raft Design

Applicant

Foxlake Investments (Pty) Ltd

Respondent

T/A Foxway Developments (Pty) Ltd

Respondent

Procedural Posture

Interlocutory Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the amendment sought by the plaintiffs amounts to an impermissible substitution of the first defendant or a mere correction of a misnomer.
  2. 2 Whether the amendment would prejudice the defendant, particularly regarding prescription.
  3. 3 Whether the requirements of section 15(1) of the Prescription Act, 1969 were met by service of the summons.

Ratio Decidendi

The court found that the plaintiffs' earlier unopposed amendment, which replaced 't/a' with 'alternatively', effectively allowed either Foxlake Investments (Pty) Ltd or Foxway Developments (Pty) Ltd to be the first defendant. Any substitution occurred at that stage, and the current objection by the first defendant was foregone and belated. The court held that the requirements of section 15(1) of the Prescription Act, 1969 were met when the summons was served at the shared address, regardless of the citation error. The plaintiffs' error was due to gross negligence by their attorneys, but this did not warrant refusal of the amendment. However, the plaintiffs should bear the costs occasioned...

Court Disposition

Application granted; leave to amend particulars of claim as set out in the notice of intention to amend dated 22 August 2013. Costs awarded against the applicants in favour of the first respondent.

Orders

  • The applicants are granted leave to amend their particulars of claim as set out in the notice of intention to amend dated 22 August 2013.
  • The applicants are ordered to pay the costs of the first respondent in opposing the application for amendment.