Vesta in re: Vesta v McDonald and Another (3452/2012), Ex parte [2012] ZAFSHC 167 (10 September 2012)

Vesta in re: Vesta v McDonald and Another (3452/2012), Ex parte [2012] ZAFSHC 167 (10 September 2012)

The court found that the applicant suppressed material facts by failing to disclose that the respondents had consented to the jurisdiction of the court in clause 19 of the Deed of Sale. There was no legal basis for seeking an order to found or confirm jurisdiction, as the respondents' submission to jurisdiction was clear and sufficient. The applicant's conduct, including threats of punitive costs and failure to prevent unnecessary costs, warranted a punitive costs order on the scale as between attorney and client. The rule nisi was discharged at the applicant's request, and the applicant was ordered to pay the costs, including those of the reconsideration application and the appearance of...

Citation
[2012] ZAFSHC 167
Parties
Applicant: Campanella Vesta; Plaintiff: Campanella Vesta; Defendant: Ian Francis McDonald; Defendant: Margaret Philomena McDonald
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 September 2012
Case Number
3452/2012
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Reconsideration Under Rule 6(12)(c)
Outcome
Rule nisi discharged at applicant's request; punitive costs order granted against applicant.
Judges
J.P. Daffue
Legal Topics
Founding Jurisdiction, Anti Dissipation Interdict, Submission to Jurisdiction, Costs Order, Breach of Contract
Civil Procedure Land and Property Founding Jurisdiction Anti Dissipation Interdict Submission to Jurisdiction Costs Order Breach of Contract

Case Brief

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Parties

Campanella Vesta

Applicant

Campanella Vesta

Plaintiff

Ian Francis McDonald

Defendant

Margaret Philomena McDonald

Defendant

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Reconsideration Under Rule 6(12)(c)

Legal Issues

  1. 1 Whether the applicant was entitled to an order to found or confirm jurisdiction against the respondents.
  2. 2 Whether the respondents had already submitted to the jurisdiction of the court by virtue of clause 19 of the Deed of Sale.
  3. 3 Whether the applicant suppressed material facts in the ex parte application.

Ratio Decidendi

The court found that the applicant suppressed material facts by failing to disclose that the respondents had consented to the jurisdiction of the court in clause 19 of the Deed of Sale. There was no legal basis for seeking an order to found or confirm jurisdiction, as the respondents' submission to jurisdiction was clear and sufficient. The applicant's conduct, including threats of punitive costs and failure to prevent unnecessary costs, warranted a punitive costs order on the scale as between attorney and client. The rule nisi was discharged at the applicant's request, and the applicant was ordered to pay the costs, including those of the reconsideration application and the appearance of...

Court Disposition

Rule nisi discharged at applicant's request; punitive costs order granted against applicant.

Orders

  • The rule nisi issued on 20 August 2012 is set aside at the request of the applicant.
  • Applicant is ordered to pay the costs of the application, including the costs of the application in terms of rule 6(12)(c), and the appearance of respondents' counsel on the scale as between attorney and client.