Daly v Veldsman and Ors (HC 1913 of 2005; XREF HC 703 of 2005) [2009] ZWBHC 13 (11 February 2009)

Daly v Veldsman and Ors (HC 1913 of 2005; XREF HC 703 of 2005) [2009] ZWBHC 13 (11 February 2009)

Summary judgment is refused because there are triable issues regarding the applicant's performance of contractual obligations, a pending counterclaim, and procedural defects in the founding affidavit.

Citation
[2009] ZWBHC 13
Parties
Applicant: John Kenneth Daly; Respondent: Dean Veldsman; Respondent: Graham Veldsman; Respondent: Mark Smith
Court
Bulawayo High Court
Jurisdiction
Zimbabwe
Judgment Date
11 February 2009
Case Number
HC 1913 of 2005 ; XREF HC 703 of 2005
Procedural Posture
Summary Judgment Application / Ruling on Application for Summary Judgment
Outcome
application dismissed
Legal Topics
Summary Judgment, Exceptio Non Adimpleti Contractus, Specific Performance, Pleadings, Counterclaim
Source Language
English
Contract Law Civil Procedure Summary Judgment Exceptio Non Adimpleti Contractus Specific Performance Pleadings Counterclaim

Case Brief

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Parties

John Kenneth Daly

Applicant

Dean Veldsman

Respondent

Graham Veldsman

Respondent

Mark Smith

Respondent

Procedural Posture

Summary Judgment Application / Ruling on Application for Summary Judgment

Legal Issues

  1. 1 Whether summary judgment should be granted where triable issues exist
  2. 2 Whether the applicant is entitled to payment despite alleged breach of contract
  3. 3 Whether the exceptio non adimpleti contractus is a valid defence to summary judgment

Ratio Decidendi

Summary judgment is refused because there are triable issues regarding the applicant's performance of contractual obligations, a pending counterclaim, and procedural defects in the founding affidavit.

Court Disposition

application dismissed

Orders

  • Application for summary judgment is dismissed with costs.