Vuselela Security SPV (RF) (Pty) Ltd v Lizoxola Properties (Pty) Ltd And Another (069952/2023) [2023] ZAGPJHC 1073 (25 July 2023)
The court found that, although it retains discretion regarding costs orders, there was no factual basis presented by the respondents to justify departing from the contractual provision requiring costs on the attorney and client scale. In the absence of such facts, and given the agreement between the parties as...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 1073
- Parties
- Applicant: Vuselela Security SPV (RF) Pty Ltd; Respondent: Lizoxola Properties Proprietary Limited; Respondent: Another
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 069952/2023
- Procedural Posture
- Civil Application / Costs Determination
- Outcome
- Application granted as per the draft order; costs awarded against the first and second respondents on the attorney and client scale.
- Judges
- Wilson
- Legal Topics
- Costs Order, Mortgage Bond Enforcement, Attorney and Client Scale
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vuselela Security SPV (RF) Pty Ltd
Applicant
Lizoxola Properties Proprietary Limited
Respondent
Another
Respondent
Procedural Posture
Civil Application / Costs Determination
Legal Issues
- 1 Should the first and second respondents be ordered to pay costs on the attorney and client scale as per the mortgage bond agreement?.
Ratio Decidendi
The court found that, although it retains discretion regarding costs orders, there was no factual basis presented by the respondents to justify departing from the contractual provision requiring costs on the attorney and client scale. In the absence of such facts, and given the agreement between the parties as reflected in the mortgage bond, the court directed that the first and second respondents pay the applicant's costs on the attorney and client scale. The remainder of the draft order was agreed between the parties and made an order of court.
Court Disposition
Application granted as per the draft order; costs awarded against the first and second respondents on the attorney and client scale.
Orders
- The draft order handed up by counsel, signed, dated and marked X, is made an order of court.
- The first and second respondents are directed to pay the applicant's costs on the attorney and client scale.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 069952/2023
DATE: 2023-07-25
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between
VUSELELA SECURITY SPV (RF) PTY LTD Applicant And LIZOXOLA PROPERTIES PROPRIETARY LIMITED & ANOTHER Respondent
JUDGMENT EX TEMPORE
WILSON, J:
I have in front of me a draft order in this matter, paragraphs 1 and 3 of which are agreed to between the parties. The only issue I am asked to decide is the question of whether or not the first and second respondents should be required to pay the costs of this application on the scale as between attorney and client.
The basis on which Mr Cook argues that the costs order should be made on a scale as between attorney and client is that this order and the application arise out of the enforcement of a mortgage bond, the provisions of which make clear that in the event that any legal action is necessary to enforce it, an attorney and own client costs order will follow. Mr Cook, for reasons we need not traverse at the moment, seeks only a costs order on the attorney and client scale.
It is trite that, although an agreement to pay costs on such a scale does not bind a Court’s discretion, a Court will generally give effect to an agreement to pay costs in the event of a contract having to be enforced unless there are reasons to depart from that general principle.
The first and second respondents’ attorney asks that I not mulct the second respondent in the costs on the scale provided for in paragraph 2 of the order. But his heartfelt and robust submissions are unfortunately not grounded in any facts that are available on the papers.
The difficulty then is that I have no factual foundation on which to exercise a discretion not to give effect to the agreement to pay costs on a higher than normal scale, and despite the submissions of the second respondent’s attorney, with which I have a degree of sympathy, there is no basis in this case on which to refuse to give effect to the agreement. For that reason I will direct that the first and second respondents pay the applicant’s costs on the scale as between attorney and client. That order being embodied in a draft which I shall presently make an order of Court which is otherwise agreed to.
Accordingly I make an order in terms of the draft handed up by counsel, which I have signed, dated and marked X. I hand down the order.
WILSON, J
JUDGE OF THE HIGH COURT
DATE: 25 JULY 2023