Neves Builders & Decorators v De La Cour
Jurisdiction | South Africa |
Judge | Comrie AJ |
Judgment Date | 13 November 1984 |
Citation | 1985 (1) SA 540 (C) |
Hearing Date | 09 May 1984 |
Court | Cape Provincial Division |
Comrie AJ:
In its summons plaintiff claimed:
Payment of the sum of R6 560, being plaintiff's fair and reasonable charge for work done and materials supplied by plaintiff for and on behalf of defendant at defendant's specific
Comrie AJ
instance and request during December and January 1984 A and which amount defendant has despite demand refused and/or neglected to pay although the said amount is due and payable;
interest at the rate of 11% per annum a tempore morae;
alternative relief;
B costs of suit."
Defendant entered appearance to defend. Plaintiff has applied for summary judgment, which defendant opposes. In outline the defence is as follows. The plaintiff is a builder. In November 1983 defendant engaged him to do some alteration work at a block of flats which is divided into sectional titles. The work was not undertaken on the basis of a "fair and reasonable" C charge as alleged by plaintiff, but in terms of two quotations for R1 360 (alterations to office accommodation) and R2 600 (alterations to a flat). The work was required to be finished before 1 January 1984. The defendant avers that the alterations did not go well. Plaintiff's workmen did some damage; some of the work was poorly executed and had to be re-done by another contractor; some of the work was not done at all; work D continued beyond 1 January 1984, exposing defendant to a damages claim by an incoming tenant; and various items were removed from the site by plaintiff or his workmen. Annexed to the papers is a detailed list of the "damages" which defendant claims to have suffered by reason of the aforegoing. He E subtracts the total damages from the aggregate of the two contract prices and arrives at a balance in favour of the plaintiff in the sum of R2 708,10. He then says in his affidavit:
"I am accordingly prepared to acknowledge liability to plaintiff in the amount of R2 708,10, which I accordingly tender him in full and final settlement of his claim."
There is a small arithmetical discrepancy and the matter was F argued on the basis that the amount should read R2 707,90. Defendant says that before the institution of action he offered plaintiff R3 000 in full and final settlement of the claim. The offer was rejected, and defendant has formally withdrawn it. Defendant also contends that plaintiff's claim does not G constitute a liquidated amount in money within the contemplation of Rule 32.
The plaintiff, represented by Mr Lenhoff, contends that the claim is for a liquidated amount in money. Mr Lenhoff moved for summary judgment in the sum of R2 707,90 on the basis that defendant, in his affidavit, has acknowledged or admitted liability therefor and has shown no defence to this portion of H the claim; that the tender to pay in full and final settlement is ineffective; and that defendant should be given leave to defend the balance of the claim in terms of Rule 32 (6) (b) (ii).
The first question to be decided is whether summary judgment is competent relief on plaintiff's claim. In terms of Rule 32 (1) I summary judgment is competent on four classes of claim of which only one is now relevant, namely a claim for a liquidated amount in money. The claim, as I have mentioned, is for "plaintiff's fair and reasonable charge for work done and materials supplied". I may infer from plaintiff's name that the work was in the nature of building or decorating
Comrie AJ
A and this is confirmed by defendant's affidavit. S Dreyer & Sons Transport v General Services 1976 (4) SA 922 (C) was a decision of this Court on appeal from the magistrate's court. At issue was whether a claim for work done and materials supplied, as between two business firms, was for "a liquidated amount in money" within the meaning of the Magistrate's Court B Rule 14 governing summary judgment. This Court (per DIEMONT J, FAGAN J concurring) held that it was. The summons did not disclose whether the claim was for an agreed amount or for a reasonable remuneration. DIEMONT J, as he then was, dealt with the matter on either basis. He said at 923D:
"The claim sounds in money and since the exact amount down to C the last cent is stated it is prima facie liquidated and not merely an unliquidated estimate such as a claim for damages which remains unliquidated until it is determined by a Judge and an award made.
It must be remembered that we are not dealing here with a claim for professional fees where there may be uncertainty as to the fee which an auditor or an advocate should charge. This is a claim based on a commercial contract entered into between two D business firms - the plaintiff firm alleges work done and materials supplied at defendant's special instance and request in August 1975. If the parties did not expressly agree on the price of the materials supplied the probabilities are that they were supplied at the accepted or current market price. Similarly, in so far as the services rendered are concerned, there should be no problem: either the parties agreed on the remuneration or the remuneration will be that usually paid in the particular business or trade."
E The learned Judge went on to refer to the expression "debt or liquidated demand" which is to be found in Uniform Rules 17 (2) and 31 (2) (a) dealing respectively with a simple summons and with default judgment without evidence. On the meaning of this expression he accepted the Full Bench decision of the Transvaal Court in Fatti's Engineering Co (Pty) Ltd v Vendick Spares F (Pty) Ltd 1962 (1) SA 736 and distinguished the judgment of BANKS J in Consolidated Fish Distributors (Pty) Ltd v Sargeant, Jones, Valentine & Co 1966 (4) SA 427 (C) which was followed by CORBETT J in Botha v W Swanson & Co (Pty) Ltd 1968 (2) PH F85 (C). After...
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Tredoux v Kellerman
...v First National Bank of SA Ltd 1999 (2) SA 667 (CC) (1999 (3)BCLR 253): referred toNeves Builders & Decorators v De la Cour 1985 (1) SA 540 (C): dicta at544G and 546C–H appliedPremier, Mpumalanga, and Another v Executive Committee, Association ofState-Aided Schools, Eastern Transvaal 1999 ......
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Blakes Maphanga Inc v Outsurance Insurance Co Ltd
...(4) SA 738 (T): referred to National Bank v Marks and Aaronson 1923 TPD 69: referred to Neves Builders and Decorators v De la Cour 1985 (1) SA 540 (C): referred Postmaster-General v Van Vuren 1905 TS 582: dictum at 589 applied Santam Ltd v Ethwar 1999 (2) SA 244 (SCA) ([1999] 1 All SA 252):......
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Blakes Maphanga Inc v Outsurance Insurance Co Ltd
...at 469E - F. [18] Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C) at 470E - F; Neves Builders and Decorators v De la Cour 1985 (1) SA 540 (C) at 543C - D; Fatti's Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T); S Dreyer and Sons Transport v General Service......
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Tredoux v Kellerman
...[8] Compare Cilliers Law of Costs (1997, with loose-leaf updates, service 12) para 13.19. [9] Neves Builders & Decorators v De la Cour 1985 (1) SA 540 (C) at [10] See eg Erasmus op cit at B1-213 and the cases cited in fn 4. [11] 1976 (4) SA 922 (C) at 923D - E. [12] Santam Ltd v Ethwar 1999......
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Tredoux v Kellerman
...v First National Bank of SA Ltd 1999 (2) SA 667 (CC) (1999 (3)BCLR 253): referred toNeves Builders & Decorators v De la Cour 1985 (1) SA 540 (C): dicta at544G and 546C–H appliedPremier, Mpumalanga, and Another v Executive Committee, Association ofState-Aided Schools, Eastern Transvaal 1999 ......
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Blakes Maphanga Inc v Outsurance Insurance Co Ltd
...(4) SA 738 (T): referred to National Bank v Marks and Aaronson 1923 TPD 69: referred to Neves Builders and Decorators v De la Cour 1985 (1) SA 540 (C): referred Postmaster-General v Van Vuren 1905 TS 582: dictum at 589 applied Santam Ltd v Ethwar 1999 (2) SA 244 (SCA) ([1999] 1 All SA 252):......
-
Blakes Maphanga Inc v Outsurance Insurance Co Ltd
...at 469E - F. [18] Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C) at 470E - F; Neves Builders and Decorators v De la Cour 1985 (1) SA 540 (C) at 543C - D; Fatti's Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T); S Dreyer and Sons Transport v General Service......
-
Tredoux v Kellerman
...[8] Compare Cilliers Law of Costs (1997, with loose-leaf updates, service 12) para 13.19. [9] Neves Builders & Decorators v De la Cour 1985 (1) SA 540 (C) at [10] See eg Erasmus op cit at B1-213 and the cases cited in fn 4. [11] 1976 (4) SA 922 (C) at 923D - E. [12] Santam Ltd v Ethwar 1999......