Wishart NO and Another v Firstrand Bank Limited (3459/2013) [2014] ZAKZDHC 58 (28 November 2014)

Wishart NO and Another v Firstrand Bank Limited (3459/2013) [2014] ZAKZDHC 58 (28 November 2014)

The court found that service of summons at the chosen domicilium address was not sufficient in this case, as the property had been sold and vacated years before, and the trust had no connection to the address at the time of service. There was no evidence that the applicants or the trust received the summons, and the probabilities indicated they did not. The applicants' explanation for default was reasonable and bona fide, and there was no deliberate avoidance. The suretyship was not validly executed as the first applicant lacked authority and did not act jointly with the other trustees, nor was there prior resolution or mandate. Subsequent ratification by resolution was ineffective...

Citation
[2014] ZAKZDHC 58
Parties
Applicant: Grant Logan Wishart NO; Applicant: Malcolm Grant Wishart NO; Respondent: Firstrand Bank Limited
Court
Kwazulu-Natal High Court, Durban
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 granted; default judgment set aside; applicants authorised to defend; costs reserved for trial court.
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

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

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 summons at the chosen domicilium address was not sufficient in this case, as the property had been sold and vacated years before, and the trust had no connection to the address at the time of service. There was no evidence that the applicants or the trust received the summons, and the probabilities indicated they did not. The applicants' explanation for default was reasonable and bona fide, and there was no deliberate avoidance. The suretyship was not validly executed as the first applicant lacked authority and did not act jointly with the other trustees, nor was there prior resolution or mandate. Subsequent ratification by resolution was ineffective...

Court Disposition

Application for rescission granted; default judgment set aside; applicants authorised to defend; costs reserved for trial court.

Orders

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