Century Trading Co (Pty) Ltd v the Taxing Master and Another

• Jurisdiction: South Africa
• Judge: Williamson J
• Judgment Date: 27 September 1957
• Citation: 1958 (1) SA 78 (W)
• Hearing Date: 25 September 1957
• Court: Witwatersrand Local Division

C Williamson, J.:

The applicant company has applied on notice of motion for an order setting aside the taxation of certain items in a bill of costs which was taxed against the applicant in respect of proceedings which had been instituted in this Court against the applicant in March of this year. Shortly, the nature of the items in the bill of costs D which it is sought to have set aside or altered, is the allowance of a fee for briefing two counsel in the previous proceedings; in fact, in those proceedings there had been briefed, on behalf of the present respondent, a senior counsel, i.e. counsel of the standing of Q.C., and junior counsel; and all the items attacked are items consequent upon the taxing master allowing the fees of both senior and junior counsel. The E items relate not only to the fees of the counsel but also to fees of the instructing attorney in relation to the briefing. I need not detail the items.

The previous proceedings were in the nature of an application for an interdict sought by the present respondent against the applicant (when I F say the present respondent, I refer to the second respondent in these proceedings, the first respondent being the taxing master). It appears from a perusal of the papers in the previous proceedings that the applicant in those proceedings (the second respondent in these proceedings) had entered into a contract with the present applicant for the purchase of certain assets, the property of the present applicant. Those assets were, shortly, all the stock-in-trade, motor vehicles, G fittings and the goodwill of a company known as the SA Trade Supplies (Pty.) Ltd., and the company known as Speedy Products (Pty.) Ltd.; and included in the sale of the goodwill were the right to use those two names and the right also to use the name SA Trade Supplies and the H name Speedy. A considerable sum of money was involved in this purchase. I have not totalled up all the items which had to be paid as consideration for the passing over of certain assets and rights, but it is something over £30,000.

It appears amongst other things that there was the right, as I say, to use certain names. Although its name is now a different name - it is now known as the Century Trading Company - the present applicant

Williamson J

had apparently traded under these two names, and it sold its right to use these names to the second respondent in this matter.

The present applicant when trading in these names had used stationery and had used a post office box number, and one of the disputes that A arose between the parties was that the present applicant after the sale had used a box which had previously been used by the companies, the names of which were sold together with the goodwill to the second respondent. I am not going into the details of the dispute, but this box had belonged to one of the persons connected with the applicant company, or to the father of the managing director, Putziger Snr., and there was B a dispute as to whether the applicant company through its controlling persons or Putziger had not been receiving correspondence and matters sent through the post to the firm known as Trade Supplies, the name of which was sold to the second respondent. It was said that all sorts of mail had gone astray through wrongful taking possession of mail by somebody on behalf of the applicant - either Putziger or some C other person, and after a long dispute over a lengthy period, a letter of demand was written at the beginning of last year. There is some other correspondence attached, but I find that in January of last year a letter of demand was finally written on behalf of the second respondent, inter alia, calling upon the applicant to cease breaching the agreement D by using the telegraphic address and in certain other ways. The present applicant replied to this through an attorney - his present attorney - and amongst other things denied that there had ever been any breach of the agreement along the lines suggested, and also denied, amongst other things, that the telegraphic address 'Tradesupply' had been amongst the assets sold.

E Arising out of all that, the second respondent instituted proceedings. Certain relief in the form of an interdict was sought as against the present applicant, the Century Trading Company (Pty.) Ltd., restraining the present applicant or its servants or agents from taking delivery of postal articles or opening postal articles addressed to SA Trade Supplies, or from using the telegraphic address, the right to use of F which was in dispute; and certain other ancillary relief and alternative relief was also claimed.

I had placed before me the file of the proceedings, i.e. the petition that was filed, to which there were a number of annexures. It appears that this petition was lodged in March this year; it was postponed from G time to time whilst there were negotiations between the two sets of attorneys acting for the respective parties, and in fact no replying affidavits were ever filed. Eventually on the 21st May it was finally postponed to the 12th June, 1957, and at the same time an order was made, at the time of the postponement, that the affidavits in opposition by the present applicant were to be filed by the 27th May. At that stage, as I say, no opposing affidavits had been filed, but I have read H these papers and also the allegations contained in these affidavits made in the present application and I am satisfied that as at the 21st May there was every reason for the second respondent, the applicant in the previous proceedings, through its legal advisers, to believe...