United Medical Devices LLC and Another v Blue Rock Capital Limited and Another (13398/2015) [2016] ZAKZDHC 12 (4 March 2016)

United Medical Devices LLC and Another v Blue Rock Capital Limited and Another (13398/2015) [2016] ZAKZDHC 12 (4 March 2016)

The court found that the respondents failed to disclose material facts in their ex parte application, specifically the existence of a governing law and jurisdiction clause in the distribution agreement and ongoing litigation in California. The attached rights were contractual and not susceptible to attachment for jurisdictional purposes, lacking saleable value and not constituting property against which execution could be levied. The relief sought by the respondents was for specific performance and declaratory orders, not monetary or property claims. The court exercised its discretion under Rule 6(12)(c) to set aside the ex parte order, finding that its continuation would result in...

Citation
[2016] ZAKZDHC 12
Parties
Applicant: United Medical Devices LLC; Applicant: United Convenience Supply LLC; Respondent: Blue Rock Capital Limited; Respondent: Espro Investments Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
4 March 2016
Case Number
13398/2015
Procedural Posture
Urgent Application / Application for Reconsideration and Setting Aside of Ex Parte Attachment Order
Outcome
Application granted; ex parte order set aside; costs awarded against respondents on attorney and client scale.
Judges
Marks AJ
Legal Topics
Attachment to Found Jurisdiction, Ex Parte Applications, Non Disclosure, Specific Performance, Governing Law Clause
Civil Procedure Commercial and Corporate Attachment to Found Jurisdiction Ex Parte Applications Non Disclosure Specific Performance Governing Law Clause

Case Brief

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Parties

United Medical Devices LLC

Applicant

United Convenience Supply LLC

Applicant

Blue Rock Capital Limited

Respondent

Espro Investments Limited

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration and Setting Aside of Ex Parte Attachment Order

Legal Issues

  1. 1 Whether the ex parte order authorising attachment to found or confirm jurisdiction should be reconsidered and set aside.
  2. 2 Whether the South African court has jurisdiction in light of the governing law and jurisdiction clause in the distribution agreement.
  3. 3 Whether the rights attached are susceptible to attachment for jurisdictional purposes.

Ratio Decidendi

The court found that the respondents failed to disclose material facts in their ex parte application, specifically the existence of a governing law and jurisdiction clause in the distribution agreement and ongoing litigation in California. The attached rights were contractual and not susceptible to attachment for jurisdictional purposes, lacking saleable value and not constituting property against which execution could be levied. The relief sought by the respondents was for specific performance and declaratory orders, not monetary or property claims. The court exercised its discretion under Rule 6(12)(c) to set aside the ex parte order, finding that its continuation would result in...

Court Disposition

Application granted; ex parte order set aside; costs awarded against respondents on attorney and client scale.

Orders

  • The order of this court dated 22 December 2015 under case number 13398/2015 is set aside.
  • The respondents are ordered to pay the costs of this application, including the costs of two counsel, on the scale of attorney and client.