Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd (12667/2014) [2015] ZAWCHC 16 (18 February 2015)

Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd (12667/2014) [2015] ZAWCHC 16 (18 February 2015)

The court found that the order for security for costs was the result of a negotiated settlement between the parties, not a unilateral error. The applicant failed to establish that the order was granted in its absence as contemplated by rule 42(1)(a), since it had waived its right to be present by agreeing to the order. The court further held that the applicant did not prove a mutual mistake (justus error) sufficient to vitiate the consent to the order, as the evidence showed the agreement was reached for expediency rather than under a mistaken belief about the law. The application for rescission was therefore dismissed, as neither rule 42(1)(a) nor the common law grounds for rescission...

Citation
[2015] ZAWCHC 16
Parties
Applicant: Trinity Asset Management (Pty) Ltd; Respondent: Grindstone Investments 132 (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 February 2015
Case Number
12667/2014
Procedural Posture
Urgent Application / Application for Rescission of an Agreed Order for Security for Costs in Liquidation Proceedings
Outcome
Application for rescission dismissed with costs.
Judges
Gamble
Legal Topics
Security for Costs, Company Liquidation, Rescission of Order, Consent Judgment, Justus Error
Civil Procedure Commercial and Corporate Security for Costs Company Liquidation Rescission of Order Consent Judgment Justus Error

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Parties

Trinity Asset Management (Pty) Ltd

Applicant

Grindstone Investments 132 (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Rescission of an Agreed Order for Security for Costs in Liquidation Proceedings

Legal Issues

  1. 1 Whether the agreed order for security for costs was based on a mutual mistake regarding the applicable law.
  2. 2 Whether the order can be rescinded under rule 42(1)(a) or the common law.
  3. 3 Whether the absence of the applicant at the granting of the order constitutes grounds for rescission.

Ratio Decidendi

The court found that the order for security for costs was the result of a negotiated settlement between the parties, not a unilateral error. The applicant failed to establish that the order was granted in its absence as contemplated by rule 42(1)(a), since it had waived its right to be present by agreeing to the order. The court further held that the applicant did not prove a mutual mistake (justus error) sufficient to vitiate the consent to the order, as the evidence showed the agreement was reached for expediency rather than under a mistaken belief about the law. The application for rescission was therefore dismissed, as neither rule 42(1)(a) nor the common law grounds for rescission...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission is dismissed.
  • The applicant is ordered to pay the costs of the application.