Capital Brake Co. (Pvt) Ltd. v Benatar & Anor (HC 8056 of 2013; Ref 5257 of 2011) [2016] ZWHHC 34 (13 January 2016)

Capital Brake Co. (Pvt) Ltd. v Benatar & Anor (HC 8056 of 2013; Ref 5257 of 2011) [2016] ZWHHC 34 (13 January 2016)

Applicants were not absent as contemplated by r 449, having had notice and valid service of the application. Their failure to respond was deliberate and willful. There was no evidence of fraud or duress. Rule 449 and common law grounds for rescission were not met.

Source-derived case information.

Citation
[2016] ZWHHC 34
Parties
Applicant: Capital Brake Company (Private) Limited; Applicant: Robert Daniel Benatar; Respondent: Colleen Beatrice Benatar
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
13 January 2016
Case Number
HC 8056 of 2013 ; Ref 5257 of 2011
Procedural Posture
Opposed Application / Judgment
Outcome
Application dismissed with costs on a legal practitioner and client scale.
Legal Topics
Rescission of Judgment, Service of Process, Consent Orders, Fraud, Duress
Source Language
english
Civil Procedure Rescission of Judgment Service of Process Consent Orders Fraud Duress

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Summary, issues, holding and outcome

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Parties

Capital Brake Company (Private) Limited

Applicant

Robert Daniel Benatar

Applicant

Colleen Beatrice Benatar

Respondent

Procedural Posture

Opposed Application / Judgment

Legal Issues

  1. 1 Whether the order in HC 5257/11 was erroneously granted in the absence of the applicants under r 449
  2. 2 Whether the applicants were entitled to rescission of judgment under r 449 or common law for fraud or duress

Ratio Decidendi

Applicants were not absent as contemplated by r 449, having had notice and valid service of the application. Their failure to respond was deliberate and willful. There was no evidence of fraud or duress. Rule 449 and common law grounds for rescission were not met.

Court Disposition

Application dismissed with costs on a legal practitioner and client scale.

Orders

  • Application dismissed
  • Applicants to pay costs on a legal practitioner and client scale