Graphic Laminates CC v Albar Distributors CC
Jurisdiction | South Africa |
Citation | 2005 (5) SA 409 (C) |
Graphic Laminates CC v Albar Distributors CC
2005 (5) SA 409 (C)
2005 (5) SA p409
Citation |
2005 (5) SA 409 (C) |
Case No |
1921/2003 |
Court |
Cape Provincial Division |
Judge |
Van Reenen J |
Heard |
February 16, 2005 |
Judgment |
May 5, 2005 |
Counsel |
D Baguley for the applicant. |
Flynote : Sleutelwoorde F
Costs — Liability for — Court's order silent as to costs — Issue had, however, been fully G ventilated — In such circumstances each party liable for its own costs.
Execution — Writ of execution — Validity of — Writ for taxed bill of costs — Bill including amounts which Court held were not validly claimable — Bill also including amounts in respect of H drawing of bill and attending taxation, and it could not be said what proportion of those amounts related to amounts which were validly included and those which were not — Effect could not be given to writ as amount in respect of which order for costs could be executed could not be determined. I
Headnote : Kopnota
The applicant claimed that the first respondent was indebted to it in the amount of R89 000 and brought an application for its winding-up. The application was dismissed as was an application for leave to appeal from the decision. The latter application was dismissed with costs but there was no costs order made in respect of the application for winding-up, although the parties had J
2005 (5) SA p410
dealt with the issue of costs in their argument. The first respondent's attorney A compiled a composite bill of costs in respect of the liquidation application and the application for leave to appeal. The bill was taxed in the amount of R30 000 and a writ of execution was issued. In the present proceedings the applicant sought to set aside the writ of execution on the basis that to the extent that an amount of R11 990 thereof related to costs of the unsuccessful liquidation application for which it was not ordered to pay costs, it was pro tanto B devoid of an underlying causa. The first respondent contended that on a proper construction of the order dismissing the winding-up application, the applicant was liable for the first respondent's costs.
Held, that if the question of costs had been fully ventilated and the Court had not said anything about liability for costs or specifically stated that there would be no order as to costs, C each party was liable for the payment of its own costs. (Paragraph [11] at 412G - H.)
Held, further, that even though there was a valid underlying causa in respect of the taxed costs of the application for leave to appeal, the amount for which the writ had been issued included amounts in respect of the drawing of the bill and attending taxation, and it could not be said what proportion of those amounts related to D the liquidation application and which to the application for leave to appeal: effect could not be given to the writ as the amount in respect of which the order for costs could be executed could not be determined. The application for the setting aside of the writ accordingly had to be granted. (Paragraph [13] at 413B - E, paraphrased.)
Cases Considered
Annotations E
Reported cases
Agnew v Union and South West Africa Insurance Co Ltd 1977 (1) SA 617 (A): referred to
Cronje v Pelser 1967 (2) SA 589 (A): dictum at 593 applied F
Du Preez v Du Preez 1977 (2) SA 400 (C): distinguished
Dunlop Rubber Co Ltd v Stander 1924 CPD 431: distinguished
Gluckman v Winter and Another 1931 AD 449: dictum at 450 applied
Kruger Bros & Wasserman v Ruskin 1918 AD 63: dictum at 69 applied
Le Roux v Yskor Landgoed (Edms) Bpk en Andere 1984 (4) SA 252 (T): dictum at 257B applied G
Martens v Rand Share & Broking Finance Corp (Pty) Ltd 1939 WLD 159: dictum at 165 applied
Perelson v Druain 1910 TS 458: distinguished
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): applied
Ras en Andere v Sand River Citrus Estates (Pty) Ltd 1972 (4) SA 504 (T): dictum at 570E applied H
Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA): referred to
Sachs v Katz 1955 (1) SA 67 (T): referred to
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 2003 (1) SA 204 (T): dictum at 215E - F applied
Western Cape Housing Development Board and Another v Parker and Another 2005 (1) SA 462 (C): dictum at 470D - E applied. I
Case Information
Application for the setting aside of a writ of execution. The facts appear from the reasons for judgment.
D Baguley for the applicant.
R J Howie for the respondent. J
2005 (5) SA p411
Cur adv vult. A
Postea (May 5).
Judgment
Van Reenen J:
[1] The applicant, claiming that the first respondent was indebted to it in an amount of R89 326,31 in respect of goods sold and B delivered, brought an application for the winding-up of the respondent under case No 1921/2003 during March 2003.
[2] When he dismissed the application on 20 March 2003, Jamie AJ did not make any reference to the liability of either of the parties for the costs of the application. The order was made on the day C the matter was argued and no reasons were provided for the judgment then or subsequently. The parties not having made any attempts to have the question of costs revisited, it is reasonable to assume that the question of costs was dealt with by the parties' legal representatives in their arguments. D
[3] What needs to be mentioned in passing is that no answering and replying affidavits were filed and that the winding-up application was decided solely on the basis of the averments that had been made in the founding papers.
[4] The applicant, on 21 May 2003, applied for leave to appeal against Jamie AJ's order dismissing the winding-up application. E That application was dismissed with costs in a written judgment that was handed down on the same date. It appears from a perusal thereof that the winding-up application was dismissed on the basis that the claim on which it was based was disputed on bona fide and reasonable grounds and constituted an abuse of the Court's process. F
[5] The first respondent's attorney compiled a composite bill of costs that encapsulated the fees and disbursements of the liquidation application as well as the...
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...claim into parts going to be dealt with in terms of Magistrates Courts jurisdiction and others destined for the High Court.' [5] 2005 (5) SA 409 (C) at 412H – [6] 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13). ...
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