Wesseloo v Bham Tayob Khan Matunda Inc (1453/2017) [2021] ZAECPEHC 9 (16 February 2021)

Wesseloo v Bham Tayob Khan Matunda Inc (1453/2017) [2021] ZAECPEHC 9 (16 February 2021)

The respondent, although ultimately successful in resisting the liquidation application, was responsible for numerous delays and failed to disclose its defence timeously, causing unnecessary postponements and wasted costs. The respondent's conduct justified depriving it of the costs of the main application and holding it liable for wasted costs occasioned by specific postponements. The applicant was not entitled to costs up to the date of the answering affidavit, as the underlying debt was disputed and the separation agreement did not unequivocally establish the claim. For interlocutory applications and the urgent application to stay proceedings, each party should bear its own costs, as...

Citation
[2021] ZAECPEHC 9
Parties
Applicant: Jan Jacobus Wesseloo; Respondent: Bham Tayob Khan Matunda Inc
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
16 February 2021
Case Number
1453/2017
Procedural Posture
Civil Application / Costs Judgment Following Dismissal of Liquidation Application
Outcome
The respondent is deprived of its costs in the liquidation application and ordered to pay the applicant's reserved costs for specified postponements. Each party to bear its own costs for interlocutory and urgent applications.
Judges
N Gqamana
Legal Topics
Costs Award, Liquidation Application, Postponement Wasted Costs, Attorney and Client Scale, Party and Party Scale
Civil Procedure Commercial and Corporate Costs Award Liquidation Application Postponement Wasted Costs Attorney and Client Scale Party and Party Scale

Case Brief

Summary, issues, holding and outcome

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Parties

Jan Jacobus Wesseloo

Applicant

Bham Tayob Khan Matunda Inc

Respondent

Procedural Posture

Civil Application / Costs Judgment Following Dismissal of Liquidation Application

Legal Issues

  1. 1 Whether the respondent, despite its success in the main liquidation application, should be deprived of its costs due to its conduct during the proceedings.
  2. 2 Which party should bear the costs occasioned by multiple postponements and interlocutory applications.
  3. 3 Whether the applicant is entitled to costs up to the date the respondent filed its answering affidavit.

Ratio Decidendi

The respondent, although ultimately successful in resisting the liquidation application, was responsible for numerous delays and failed to disclose its defence timeously, causing unnecessary postponements and wasted costs. The respondent's conduct justified depriving it of the costs of the main application and holding it liable for wasted costs occasioned by specific postponements. The applicant was not entitled to costs up to the date of the answering affidavit, as the underlying debt was disputed and the separation agreement did not unequivocally establish the claim. For interlocutory applications and the urgent application to stay proceedings, each party should bear its own costs, as...

Court Disposition

The respondent is deprived of its costs in the liquidation application and ordered to pay the applicant's reserved costs for specified postponements. Each party to bear its own costs for interlocutory and urgent applications.

Orders

  • The respondent is ordered to pay the applicant the reserved costs in the liquidation application occasioned by the postponements on 22 August 2017, 12 October 2017, 15 February 2018 and 13 August 2020 on a party and party scale.
  • In respect of the urgent application to stay the proceedings, the condonation applications and the Rule 30 applications, each party to pay their own costs.