Wainstein v Fane (16781/2015) [2018] ZAGPJHC 588 (24 August 2018)

Wainstein v Fane (16781/2015) [2018] ZAGPJHC 588 (24 August 2018)

The court found that the settlement agreement required the applicant to account to the respondent's legal representatives every month, regardless of whether Jasper Technologies International LLC earned a profit. The applicant only accounted for months in which profits were earned, thereby breaching the agreement. The respondent made a demand for accounting, which was not complied with within the stipulated five-day period. The fact that the demand requested supporting documentation did not render it void, as the applicant failed to provide any accounting for certain months. The absence of the affidavit used to obtain the writ was not relevant to the determination of breach. Consequently,...

Citation
[2018] ZAGPJHC 588
Parties
Applicant: Earle Wainstein; Respondent: Madeleine Frances Fane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 August 2018
Case Number
16781/2015
Procedural Posture
Urgent Application / Application to Set Aside Writ of Execution
Outcome
Application dismissed with costs.
Judges
Bester
Legal Topics
Settlement Agreement, Interpretation of Contract, Writ of Execution, Breach of Obligation
Civil Procedure Settlement Agreement Interpretation of Contract Writ of Execution Breach of Obligation

Case Brief

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Parties

Earle Wainstein

Applicant

Madeleine Frances Fane

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writ of Execution

Legal Issues

  1. 1 Whether the applicant breached the settlement agreement by failing to account monthly as required.
  2. 2 Whether the respondent was entitled to issue a writ of execution for the outstanding balance.
  3. 3 Whether the demand for accounting was properly complied with within the stipulated time frame.

Ratio Decidendi

The court found that the settlement agreement required the applicant to account to the respondent's legal representatives every month, regardless of whether Jasper Technologies International LLC earned a profit. The applicant only accounted for months in which profits were earned, thereby breaching the agreement. The respondent made a demand for accounting, which was not complied with within the stipulated five-day period. The fact that the demand requested supporting documentation did not render it void, as the applicant failed to provide any accounting for certain months. The absence of the affidavit used to obtain the writ was not relevant to the determination of breach. Consequently,...

Court Disposition

Application dismissed with costs.

Orders

  • The application to set aside the writ of execution is dismissed.
  • The applicant is ordered to pay the costs of the application.