Vicki Momberg t/a Homes & Properties v Shellwell NO and Others (7863/2009) [2012] ZAKZDHC 95 (6 December 2012)

Vicki Momberg t/a Homes & Properties v Shellwell NO and Others (7863/2009) [2012] ZAKZDHC 95 (6 December 2012)

The court found that the plaintiff failed to establish, on a balance of probabilities, the contractual basis for her entitlement to commission from the trust. The evidence presented by the plaintiff was inconsistent with her pleadings and contradicted by other witnesses, particularly Ms Patrick. The court held that the plaintiff's version of the agreement was not sufficiently clear or probable to support her claim. The plaintiff did not seek to amend her pleadings to align with her evidence, and the court could not grant relief on a version not pleaded. Consequently, the plaintiff's claim for commission failed.

Citation
[2012] ZAKZDHC 95
Parties
Plaintiff: Vicki Momberg t/a Homes & Properties; Defendant: Graham John Shellwell NO; Defendant: Roderick Robert Stainton NO; Defendant: Peter C Odgers NO
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
6 December 2012
Case Number
7863/2009
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Plaintiff's claim dismissed; defendant absolved from the instance.
Judges
Lopes
Legal Topics
Estate Agent Commission, Oral Contracts, Mandate Disputes, Damages, Pleading Inconsistency
Commercial and Corporate Civil Procedure Estate Agent Commission Oral Contracts Mandate Disputes Damages Pleading Inconsistency

Case Brief

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Parties

Vicki Momberg t/a Homes & Properties

Plaintiff

Graham John Shellwell NO

Defendant

Roderick Robert Stainton NO

Defendant

Peter C Odgers NO

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the plaintiff established a contractual right to commission from the trust on a balance of probabilities.
  2. 2 Whether the agreement between the plaintiff and the trust was for payment of commission or for a sole mandate to sell units.
  3. 3 Whether the plaintiff's pleadings and evidence were consistent and sufficient to prove her claim.

Ratio Decidendi

The court found that the plaintiff failed to establish, on a balance of probabilities, the contractual basis for her entitlement to commission from the trust. The evidence presented by the plaintiff was inconsistent with her pleadings and contradicted by other witnesses, particularly Ms Patrick. The court held that the plaintiff's version of the agreement was not sufficiently clear or probable to support her claim. The plaintiff did not seek to amend her pleadings to align with her evidence, and the court could not grant relief on a version not pleaded. Consequently, the plaintiff's claim for commission failed.

Court Disposition

Plaintiff's claim dismissed; defendant absolved from the instance.

Orders

  • The defendant is absolved from the instance.
  • Each party is to pay their own costs of the action.