Wintercastle Trading 44 (Pty) Ltd and others v Ringopro (Pty) Limited
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Djaje DJP, Petersen J and Reid J |
| Judgment Date | 28 July 2023 |
| Citation | 2023 JDR 3016 (NWM) |
| Hearing Date | 24 March 2023 |
| Docket Number | CIV APP FB 01/2022 |
| Court | North West Division, Mahikeng |
Petersen J:
Introduction
This appeal with leave of the court a quo (Hendricks JP – DJP as he then was) is against the whole of the judgment and order of the court a quo (save for the part where no judgment for payment was granted against the fifth appellant).
The respondent (plaintiff in the court a quo) instituted an action consisting of three (3) claims against the five appellants (first to fifth defendants in the court a quo). Claim A was for arrear rental arising from the use of an aircraft for the period 12 January 2015 to the date of cancellation of the agreement on 14 September 2015. Claim B was for damages arising from the premature termination of a lease for the period 15 September 2015 to 11 January 2016. Claim C was for damages arising from the first defendant’s failure to restore the aircraft
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Petersen J
to the condition it was at the commencement of the lease. In this judgment the parties where necessary will be referred to as Winter Castle (the first appellant); Mr Maree (the second appellant); Mrs Maree (the third appellant); Majora (the fourth appellant); MEGA (the fifth appellant) and Ringopro (the respondent).
The court a quo found in favour of Ringopro on Claims A, B and C and issued an order in the following terms:
“Judgment is entered against the first, second, third and fourth defendants, jointly and severally, the one paying the others to be absolved, for:
Payment of the amount of R1,527,948.55;
Interest on the sum of R1,527,948.55 at the rate of 7% per annum a tempore morae to date of payment.
Payment of the amount of USD147,750.54 or the South African Rand equivalent as at the date of payment.
Interest on the amount of USD147,750.54 at the rate of 7% per annum a tempore morae to date of payment.
Payment of the amount of R291,842.07;
Interest on the amount of R291,842.07 at the rate of 7% per annum a tempore morae to date of payment.
Costs of suit on the attorney and own client scale.”
The appellants come before the Full Court seeking an order that the appeal be upheld with costs. In the place of the order of the court a quo they seek an order dismissing all the claims of Ringopro (plaintiff) against Winter Castle (first defendant), Dawid and Eliza Mare (second and third defendants) and Majora 185 (fourth defendant) with costs and granting absolution from the instance with costs in favour of MEGA (fifth defendant).
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Petersen J
Factual Background
The only witness to testify in the trial in the court a quo was the majority shareholder and director of Ringopro, Mr. Ryan Forrester (‘Forrester’). Notwithstanding very protracted cross examination and serious aspersions cast on the credibility of Forrester, his evidence as summarized by the court a quo at paragraph [20] of its judgment remained un-assailed in the absence of controverting evidence from the appellants. The summary by the court a quo provides the following context to Forrester’s evidence:
Forrester testified in detail about the lease agreements. Upon signing of the Winter Castle lease agreement it became apparent that the first defendant was not in possession of a aircraft operation certificate (AOC) or licence and that its associated company, Multimedia Entertainment Group Air (Pty) Ltd, the fifth defendant, apparently had an AOC. There was an exchange of correspondence in this regard. One of the suggestions was that Winter Castle be placed on the AOC of Multimedia Entertainment Group Air (Pty) Ltd, the fifth defendant, in which Maree also had an interest. To enable this, a “dummy” lease was entered into between Ringopro and the fifth defendant (“the Mega lease”). The aircraft was placed on the fifth defendants’ AOC in order to permit it to operate. The first and fifth defendants were co-insured. The commencement date of the lease agreement was 12 January 2015 and the duration thereof would be until 11 January 2016. It is apparent that two lease agreements were entered into by the plaintiff for the same period in respect of the same aircraft for the first and fifth defendants.”
The overall factual background provided by the court a quo in addition to Forrester’s evidence, is encapsulated very succinctly at paragraphs [1] to [18] of the judgment of the court a quo, as follows:
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Petersen J
Ringopro (Pty) Ltd, the plaintiff, is a company that inter alia lease-out aircrafts as a business. The majority shareholder and director of the plaintiff is Mr. Ryan Forrester (Forrester). On 24 November 2014 the plaintiff, duly represented by Forrester and Winter Castle Trading 44 (Pty) Limited (Winter Castle/first defendant), duly represented by Mr. David Maree (Maree), entered into a written aircraft dry lease agreement (Winter Castle lease). This was as a result that Maree, who was known in the industry of leasing aircrafts, contacted Forrester and said he was in need of an aircraft.
The express material terms of the Winter Castle lease agreement are that Ringopro leased to Winter Castle a Beechcraft 1900D aircraft with registration number ZS-ORV (“the aircraft”). The lease commenced on 12 January 2015 and endured for a period of one year until 11 January 2016. On expiry of the lease, Winter Castle would deliver the aircraft to Lanseria airport. Winter Castle would pay Ringopro an Aircraft and Maintenance Reserve (“A&R”) rental where, “A” is a basic monthly lease fee of USD38,000 per month excluding VAT. “R” is a reserve rate in an agreed amount of USD285 excluding VAT for the first 45 hours and thereafter the rate of USD350 excluding VAT per hour. Winter Castle would provide Ringopro with the hours flown each month by the third day of the following month to facilitate this billing. “CR” cycle rate is an additional fee of USD15 excluding VAT levied on engine cycles above and beyond one cycle per engine per flight hour flown. The average United States Dollar/South African Rand (ZAR) exchange rate as published by www.oanda.com at 12 noon on the 15th day of each month would provide the exchange rate conversion for the parties to compute the invoice value in ZAR.
Ringopro would ensure that at delivery the aircraft would be currently serviceable, licenced, certified and maintained and would be delivered to Winter Castle in accordance with the delivery conditions attached as Schedule 2.
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Petersen J
Winter Castle would be liable for the costs relating to a pre-lease inspection to be carried out by Winter Castle or its contracted agent (five working days were allowed for this) at Winter Castle’s costs. A copy of the pre-lease inspection was to be supplied to Ringopro.
Winter Castle and/or its agent (at its own cost) was entitled to examine the aircraft and equipment therein or arrange to be examined on delivery at Lanseria airport in order to satisfy itself that the aircraft met the delivery conditions and the complete serviceability of the aircraft, its fitness for the purpose for which the aircraft and equipment were required, and was in good sound working order and fully serviceable per the original equipment manufacturer and in accordance with the aircraft dry lease agreement. Winter Castle acknowledged and confirmed that it would ensure after its acceptance of the aircraft that it would not be entitled to claim misrepresentation whatsoever.
Winter Castle’s signature on the aircraft acceptance certificate constituted acceptance that the aircraft met the criteria in clause 4 of the aircraft dry lease agreement, the delivery conditions and attached pre-lease inspection/pre-lease flight report.
Winter Castle confirmed that at the time of delivery, the aircraft would be serviceable and free of any and all defects and/or requirement of maintenance in any form or manner. The aircraft had further complied with all service bulletins and airworthy directives requiring termination action prior to the delivery date and had a valid certificate of airworthiness.
Winter Castle would ensure that at termination of the aircraft dry lease agreement, the aircraft would be currently serviceable and maintained and would be re-delivered to Ringopro in accordance with the provisions attached as Schedule 3.
Winter Castle confirmed that at the time of re-delivery, the aircraft would be serviceable and free of any and all defects and/or requirement of
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Petersen J
maintenance in any form or manner, save for fair wear and tear excepted. Fair wear and tear excluded damage relating to harsh environments, abnormal operation of any nature to the aircraft, engines, propellers, undercarriages and/or systems, passenger abuse, abnormal or excessive cabin loading and operation on dirt or gravel airfields. The aircraft shall have complied with all service bulletins, airworthy directives requiring termination action during the term of the aircraft dry lease agreement and had a valid certificate of airworthiness.
Save for the maintenance reserve items, Winter Castle would be liable for all charges incurred for the maintenance of the aircraft falling outside of the aircraft dry lease agreement, together with all positioning and repositioning costs which would include fuel, landing fees, navigation fees and approach fees. Ringopro would not be responsible for any such charges.
All repairs and all spare parts (including engine accessories) would be for the account of Winter Castle (including freight, customs duty and insurance thereof) whilst under the aircraft dry lease agreement.
Ringopro would be entitled to terminate the aircraft dry lease agreement with immediate effect in the event of inter alia any payment not being made by Winter Castle within seven (7) days of receipt of written notice calling upon Winter Castle to do...
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