Vest Sources 2 (Pty) Ltd v Dennis Moss Planners & Architects (Pty) Ltd t/a Dennis Moss Partnership (9330/2010) [2011] ZAWCHC 206 (3 May 2011)

Vest Sources 2 (Pty) Ltd v Dennis Moss Planners & Architects (Pty) Ltd t/a Dennis Moss Partnership (9330/2010) [2011] ZAWCHC 206 (3 May 2011)

The court found that the particulars of claim were vague and embarrassing in several respects. The plaintiff failed to distinguish with sufficient particularity the oral and written terms of the agreement, and the documents annexed did not clarify the dates or content of the agreement. The damages claimed were not set out in a manner that would allow the defendants to reasonably assess the quantum, particularly regarding lump sum estimates and insufficient itemisation. The written agreement relied upon by the plaintiff contained clauses that specifically excluded the first defendant's liability for defective workmanship by the second defendant, creating an unresolved anomaly in the...

Citation
[2011] ZAWCHC 206
Parties
Plaintiff: Vest Sources 2 (Pty) Ltd; Defendant: Dennis Moss Planners & Architects (Pty) Ltd t/a Dennis Moss Partnership; Defendant: Harold Turner Building Contractors CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 May 2011
Case Number
9330/2010
Procedural Posture
Exception Application / Ruling on Exceptions to Particulars of Claim
Outcome
Exceptions upheld with costs. Plaintiff granted leave to amend particulars of claim within one month.
Judges
Cleaver
Legal Topics
Exceptions to Pleadings, Joint and Several Liability, Agency, Damages Quantification, Building Contracts
Civil Procedure Commercial and Corporate Exceptions to Pleadings Joint and Several Liability Agency Damages Quantification Building Contracts

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Parties

Vest Sources 2 (Pty) Ltd

Plaintiff

Dennis Moss Planners & Architects (Pty) Ltd t/a Dennis Moss Partnership

Defendant

Harold Turner Building Contractors CC

Defendant

Procedural Posture

Exception Application / Ruling on Exceptions to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim are vague and embarrassing and excipiable on the grounds raised by the first defendant.
  2. 2 Whether the plaintiff has sufficiently pleaded the terms of the agreement, distinguishing oral and written terms.
  3. 3 Whether the damages claimed are set out with sufficient particularity to comply with Rule 18(10).

Ratio Decidendi

The court found that the particulars of claim were vague and embarrassing in several respects. The plaintiff failed to distinguish with sufficient particularity the oral and written terms of the agreement, and the documents annexed did not clarify the dates or content of the agreement. The damages claimed were not set out in a manner that would allow the defendants to reasonably assess the quantum, particularly regarding lump sum estimates and insufficient itemisation. The written agreement relied upon by the plaintiff contained clauses that specifically excluded the first defendant's liability for defective workmanship by the second defendant, creating an unresolved anomaly in the...

Court Disposition

Exceptions upheld with costs. Plaintiff granted leave to amend particulars of claim within one month.

Orders

  • The exceptions to the particulars of claim succeed with costs in respect of paragraph 4, the anomaly created by clauses 4.3.3 and 4.3.4 of the agreement marked VST2, the insufficient description of damages in paragraphs 18.2, 18.4, and 18.5, and the failure to properly plead agency.
  • The plaintiff is granted leave to amend its particulars of claim within one month of the date of this order.