Wainstein v Fane (16781/2015) [2018] ZAGPPHC 828 (24 August 2018)

Wainstein v Fane (16781/2015) [2018] ZAGPPHC 828 (24 August 2018)

The court held that the settlement agreement imposed two distinct obligations: payment of 30% of profits earned by Jasper Technologies International LLC, and monthly accounting to the respondent's legal representatives, regardless of whether profits were earned. The applicant failed to account for months in which no profit was made, constituting a breach of the agreement. The respondent made a demand for accounting, which was not met within the five-day period required by the agreement. The court rejected the applicant's arguments regarding the content of the demand and the absence of the affidavit, finding these did not affect the respondent's entitlement to issue the writ. The...

Citation
[2018] ZAGPPHC 828
Parties
Applicant: Earle Wainstein; Respondent: Madeleine Frances Fane
Court
North Gauteng High Court, Pretoria
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, Writ of Execution, Breach of Contract, Duty to Account
Civil Procedure Commercial and Corporate Settlement Agreement Interpretation Writ of Execution Breach of Contract Duty to Account

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.

Ratio Decidendi

The court held that the settlement agreement imposed two distinct obligations: payment of 30% of profits earned by Jasper Technologies International LLC, and monthly accounting to the respondent's legal representatives, regardless of whether profits were earned. The applicant failed to account for months in which no profit was made, constituting a breach of the agreement. The respondent made a demand for accounting, which was not met within the five-day period required by the agreement. The court rejected the applicant's arguments regarding the content of the demand and the absence of the affidavit, finding these did not affect the respondent's entitlement to issue the writ. The...

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.