Wishart and Another v Firstrand Bank Limited (3459/2013) [2014] ZAKZPHC 59 (28 November 2014)

Wishart and Another v Firstrand Bank Limited (3459/2013) [2014] ZAKZPHC 59 (28 November 2014)

The court found that service of the summons at the chosen domicilium address was not sufficient to establish that the applicants or the trust received the summons, as the property had been sold years prior and the post box was accessible to multiple residents. The respondent failed to discharge the onus of proving receipt. The applicants provided a reasonable and bona fide explanation for their default and acted within the prescribed period upon learning of the judgment. The suretyship was not validly executed on behalf of the trust, as only one trustee signed without prior authority or resolution, contrary to the requirements of the trust deed and section 6 of the General Law Amendment...

Citation
[2014] ZAKZPHC 59
Parties
Applicant: Grant Logan Wishart NO; Applicant: Malcolm Grant Wishart NO; Respondent: Firstrand Bank Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
28 November 2014
Case Number
3459/2013
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment Under Rule 31(5)(d)
Outcome
Application for rescission of default judgment granted; applicants authorised to defend the action.
Judges
Madondo
Legal Topics
Rescission of Judgment, Service at Domicilium, Suretyship Validity, Trustee Authority, Ratification of Acts
Civil Procedure Commercial and Corporate Rescission of Judgment Service at Domicilium Suretyship Validity Trustee Authority Ratification of Acts

Case Brief

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Parties

Grant Logan Wishart NO

Applicant

Malcolm Grant Wishart NO

Applicant

Firstrand Bank Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment Under Rule 31(5)(d)

Legal Issues

  1. 1 Whether service of summons at the chosen domicilium address was valid.
  2. 2 Whether the applicants or the trust received the summons and deliberately defaulted.
  3. 3 Whether the contract of suretyship was validly signed on behalf of the trust.

Ratio Decidendi

The court found that service of the summons at the chosen domicilium address was not sufficient to establish that the applicants or the trust received the summons, as the property had been sold years prior and the post box was accessible to multiple residents. The respondent failed to discharge the onus of proving receipt. The applicants provided a reasonable and bona fide explanation for their default and acted within the prescribed period upon learning of the judgment. The suretyship was not validly executed on behalf of the trust, as only one trustee signed without prior authority or resolution, contrary to the requirements of the trust deed and section 6 of the General Law Amendment...

Court Disposition

Application for rescission of default judgment granted; applicants authorised to defend the action.

Orders

  • The default judgment obtained by the respondent on 31 May 2013 is set aside.
  • The applicants are authorised to defend the respondent’s action against them.