Wimbledon Lodge (Pty) Ltd v Gore NO and Others (39/2002) [2003] ZASCA 33; [2003] 2 All SA 179 (SCA); 2003 (5) SA 315 (SCA) (31 March 2003)

Wimbledon Lodge (Pty) Ltd v Gore NO and Others (39/2002) [2003] ZASCA 33; [2003] 2 All SA 179 (SCA); 2003 (5) SA 315 (SCA) (31 March 2003)

The majority held that the votes obtained by the developer and his controlled corporations through fraudulent appropriation of common property should not be counted against the resolution to institute proceedings. Applying the principle that no one may benefit from his own wrongdoing, the resolution must be deemed to have passed. The body corporate, through its trustees, is competent to institute action to recover the lost common property or claim damages. The deeds of sale collectively constitute a pre-incorporation contract for the benefit of the body corporate, which has implicitly accepted the benefits and duties thereof. The requirements of section 41 of the Sectional Titles Act were...

Citation
[2003] ZASCA 33
Parties
Appellant: Wimbledon Lodge (Pty) Ltd; Respondent: Stephen Malcolm Gore NO; Respondent: Robert John Walters NO; Respondent: Trevor Philip Glaum NO; Respondent: Harbour’s Edge Body Corporate
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2003
Case Number
39/2002
Procedural Posture
Civil Appeal / Appeal From the Cape Provincial Division of the High Court
Outcome
Appeal allowed with costs, including costs of senior counsel. The order of the court a quo dismissing the application is set aside and replaced with an order appointing a provisional curator ad litem to the third respondent.
Judges
Schutz, Olivier, Zulman, Streicher, Heher
Legal Topics
Sectional Titles Act, Fraudulent Misrepresentation, Appointment of Curator, Rectification of Sectional Plan, Locus Standi, Pre Incoporation Contract
Land and Property Civil Procedure Commercial and Corporate Sectional Titles Act Fraudulent Misrepresentation Appointment of Curator Rectification of Sectional Plan Locus Standi +1 more

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Parties

Wimbledon Lodge (Pty) Ltd

Appellant

Stephen Malcolm Gore NO

Respondent

Robert John Walters NO

Respondent

Trevor Philip Glaum NO

Respondent

Harbour’s Edge Body Corporate

Respondent

Procedural Posture

Civil Appeal / Appeal From the Cape Provincial Division of the High Court

Legal Issues

  1. 1 Whether the appellant is entitled to the appointment of a curator ad litem for the body corporate under section 41 of the Sectional Titles Act.
  2. 2 Whether the body corporate has locus standi to institute proceedings against the developer for alleged fraud and deprivation of common property.
  3. 3 Whether the sum of deeds of sale constitutes a pre-incorporation contract for the benefit of the body corporate.

Ratio Decidendi

The majority held that the votes obtained by the developer and his controlled corporations through fraudulent appropriation of common property should not be counted against the resolution to institute proceedings. Applying the principle that no one may benefit from his own wrongdoing, the resolution must be deemed to have passed. The body corporate, through its trustees, is competent to institute action to recover the lost common property or claim damages. The deeds of sale collectively constitute a pre-incorporation contract for the benefit of the body corporate, which has implicitly accepted the benefits and duties thereof. The requirements of section 41 of the Sectional Titles Act were...

Court Disposition

Appeal allowed with costs, including costs of senior counsel. The order of the court a quo dismissing the application is set aside and replaced with an order appointing a provisional curator ad litem to the third respondent.

Orders

  • Mr D R Mitchell SC is appointed as provisional curator ad litem to the third respondent in terms of section 41(3) of the Sectional Titles Act, 95 of 1986.
  • The return day of this order before the Cape High Court is Thursday, 12 June 2003, when the provisional order may be discharged or the appointment of a curator ad litem may be confirmed and further directions may be given for the institution of proceedings in the name of the third respondent.