Kotsopoulos v Bilardi

• Jurisdiction: South Africa
• Judge: Corbett J and Tebbutt AJ
• Judgment Date: 19 February 1970
• Citation: 1970 (2) SA 391 (C)
• Hearing Date: 18 August 1969
• Court: Cape Provincial Division

C Corbett, J.:

Plaintiff's declaration alleges that on 3rd September, 1964 the defendant entered into a written agreement with Glencairn Hotel (Pty.) Ltd. (hereinafter referred to as 'Glencairn Hotel') in terms whereof defendant purchased from Glencairn Hotel certain fixtures and D fittings for the sum of R4,400, which amount was to be paid in monthly instalments of R120 as from 1st September, 1964. It is further alleged that pursuant to the agreement, defendant duly took delivery of the fixtures and fittings and remains in possession thereof; that on 30th January, 1965 Glencairn Hotel ceded to plaintiff and one Theodorus Kotsopoulos, jointly and severally, all its rights under, and interest E in, the agreement; and that, owing to non-payment of instalments, the unpaid balance of the purchase price, amounting to R1,340.50, has become immediately due and payable in terms of the agreement. Plaintiff's claim is, accordingly, for payment of this sum, interest a temporae morae and costs of suit.

F To this declaration defendant has taken exception upon two grounds. The first of these is to the effect that the plaintiff's declaration is bad in law and discloses no cause of action in that -

'The purported cession to plaintiff and one Theodorus Kotsopoulos (in terms of clause 9 of the memorandum of agreement, annexure 'A' to plaintiff's reply to defendant's request for further particulars) upon which plaintiff's claim is based was invalid.'

G In order to understand this exception it is necessary to make some reference to certain further particulars, dated 14th February, 1965, furnished by plaintiff at defendant's request and certain further and better particulars given on 28th April, 1969. In answer to a request for particulars asking on what basis and/or in what capacity plaintiff alone H was suing the defendant and for details regarding the cession of interest and rights by Glencairn Hotel to plaintiff and Theodorus Kotsopoulos, plaintiff replied as follows:

'(b)

Plaintiff above is sueing defendant on the basis that the rights of Glencairn Hotel (Pty.) Ltd. in terms of the said memorandum of agreement were ceded to plaintiff and Theodorus Kotsopoulos jointly and severally. Plaintiff avers that the effect of the said cession is that he is entitled to sue defendant for the full amount due in terms of the said memorandum of agreement.

(c)

A copy of the written agreement of cession is annexed hereto marked 'A'. Defendant is referred, more particularly, to para. 9 (a) thereof.'

Corbett J

Annexure 'A' consists of a written agreement in which the parties thereto are stated to be:

'1.

George Kotsopoulos

2.

Theodorus Kotsopoulos

3.

C & K Building Construction Co. (Pty.), Ltd., in provisional liquidation, represented herein by the provisional liquidator, Laurence Maister

4.

A Glencairn Hotel (Pty.) Ltd., represented herein by Laurence Maister who is duly authorised so to act

5.

The insolvent estate of John Poultides represented herein by the trustee thereof the said Laurence Maister.'

After a fairly lengthy preamble, which goes a long way to explaining the circumstances leading up to the conclusion thereof, the agreement proceeds, in the course of thirteen clauses, to deal with various B matters as between the different parties thereto. Clause 9 thereof reads as follows:

'9. The parties hereto have agreed that, in consideration for the rights acquired and disposed of by them with respect to both the Atlantic Hotel and Glencairn Hotel businesses, as also the termination of their liabilities with respect to those businesses, including release C of George Kotsopoulos from any claim for damage arising out of his breach of the lease agreement aforesaid, George Kotsopoulos and Theodorus Kotsopoulos shall receive jointly and severally the following assets and be released from the following liabilities:

(a)

Cession to George Kotsopoulos and Theodorus Kotsopoulos jointly and severally by the Glencairn Hotel (Pty.) Ltd. of all its right and interest under and to certain agreement entered into at Cape Town by it with one Antioco Bilardi and dated 29th August, 1964, and 3rd September, 1964, for R4,400.

(b)

D Twelve thousand one hundred rand (R12,100) of the proceeds of the bills drawn by Holmes in respect of the purchase price of the Glencairn Hotel business, George Kotsopoulos and Theodorus Kotsopoulos authorising Walter Goldberg Trust Ltd. to pay to the insolvent estate of John Poultides the balance of the proceeds of those bills.

(c)

C & K Building Construction Co. (Pty.), Ltd. in provisional liquidation and the insolvent estate of John Poultides, do E hereby jointly and severally indemnify both George Kotsopoulos and Theoporus Kotsopoulos against any liability which they or either of them may have incurred to the Trust Bank of Africa Ltd. over and above the unpaid bills totalling R1,500 referred to above, and undertakes to secure their release from such liability.'

The agreement is signed by or on behalf of all the parties thereto. In the case of Glencairn Hotel there is a signature followed by the designation 'pp. Glencairn Hotel (Pty.) Ltd.'. The signature itself is, F on the face of it, indecipherable but it would seem to be that of Laurence Maister, who in the description of the parties (quoted above) is stated to have represented Glencairn Hotel in concluding the agreement and to have been duly authorised to do so. This is to be inferred from the fact that the same person appears to have signed the G agreement as provisional liquidator of C & K Building Construction Co. (Pty.) Ltd. and also as trustee of the insolvent estate of John Poultides and it is clear from the description of the parties in the agreement that Laurence Maister held both of those appointments.

In the request for further and better particulars plaintiff was asked H whether para. 9 (a) of the written agreement (annexure 'A') was the cession on 30th January, 1965 alleged in para. (f) of plaintiff's summons; to which question plaintiff replied affirmatively. Para. (f) of the summons reads as follows:

'On 30th January, 1965, the liquidator of the said Glencairn Hotel (Pty.) Ltd. ceded all that company's right, title and interest in and to the said deed of sale to and in favour of the plaintiff for value received.'

In support of the first ground of exception, viz. that the purported cession of rights under the agreement between the Glencairn Hotel

Corbett J

and defendant (to which I shall refer as the 'Bilardi agreement') was invalid, Mr. Kies, who appeared on behalf of the excipient (defendant), advanced two contentions. The first of these was that it appeared ex A facie the pleadings that at the time of the cession the Glencairn Hotel was under liquidation; that, accordingly, the liquidator was the only person who could conclude and sign the agreement (annexure 'A') containing the cession; and that ex facie the agreement itself it had not been signed by the liquidator.

The submission that it appeared from the pleadings that the Glencairn B Hotel was under liquidation is based upon two such indications. The first is contained in para. (f) of the summons which is quoted above. The second is contained in a letter referred to in, and annexed to, plaintiff's further particulars in response to a request for a copy of the demand, if in writing. In this letter of demand, which is dated 12th February, 1968, appears the following sentence:

C 'When Glencairn Hotel (Pty.) Ltd was subsequently placed under compulsory liquidation and liquidator ceded all his rights under the said agreement to our client to whom you have been paying instalments from time to time.'

Dealing with this latter indication first, I very much doubt whether the annexing of this letter of demand can be regarded as an adoption by plaintiff, for the purpose of his pleadings, of all the allegations of D fact contained therein. Although particulars, when furnished do form part of the pleadings, I would be inclined to think, in the present case, that the only significance of annexing the letter in question would be that it constituted an averment that on 12th February, 1968, a letter of demand claiming the amount of R1,340.50 and in the terms set forth in the annexure was sent by plaintiff's attorney to the defendant.

E The second indication, viz. that contained in para. (f) of the summons, is clear enough, consisting, as it does, of an averment that the cession was made by the liquidator of Glencairn Hotel. Moreover, the further and better particulars confirm that plaintiff's cause of action is based upon this cession. It is true that the declaration itself F merely alleges that the cession was made by Glencairn Hotel but I do not think that this is necessarily inconsistent with the averment in the summons. A contract made by a liquidator on behalf of a company in liquidation is in truth a contract made by the company. In any event, the statement made in plaintiff's further and better particulars clearly G links the cession referred to in the declaration with that described in para. (f) of the summons and the latter unequivocally states that the cession was effected by the liquidator. Indeed it has not been suggested that there is any material variance between the summons and the declaration...