IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION GRAHAMSTOWN) CASE NO: 2123/2012 DATE HEARD: 26/04/2012 DATE DELIVERED: 16/05/2012 In the matter between NV PROPERTIES (PTY) LIMITED APPLICANT and HRN QUANTITY SURVERYORS (PTY) LIMITED RESPONDENT JUDGMENT ROBERSON J:- [1] This is an application for the rescission of a default judgment granted by the Registrar of this Court, after the applicant failed to enter an appearance to defend. The respondent, a company carrying on business as quantity surveyors, instituted action against the applicant, which carries on business as a property developer, for payment of the sum of R152 284.22. It alleged an agreement in terms of which it rendered certain professional services to the applicant, and that the applicant had, despite demand, failed to pay its fees. The services to be provided by the respondent related to alterations and additions to a development of the applicant, known as The Moorings, Ashmead, Knysna.
[2] The summons was served on the applicant on 11 July 2011, at its registered office, which is also the address of its auditors. The deponent to the founding affidavit, Vyadislav Nassimov, a director of the applicant, said that the summons was only brought to his attention by the auditors on 23 August 2011 and he immediately instructed his attorneys to enter an appearance to defend. However, by this time the default judgment had been granted on 11 August 2011. Supporting affidavits were filed by employees of the auditors confirming that the summons was served at their offices on 11 July 2011 and only brought to the attention of the applicant on 23 August 2011. I am therefore satisfied with the explanation for the default. [3] The applicant raised two defences. The first was that the agreement had been concluded between the respondent and another entity, Premier Hotels & Resorts (Pty) Ltd (Premier Hotels), a member of the group of companies to which the applicant belongs. The second was that the respondent had failed to provide all the services which it was obliged to in terms of the agreement. [4] I intend dealing only with the first defence. In the founding affidavit Nassimov did not name Premier Hotels. He merely said that the agreement had been concluded with another member of the Group of Companies to which the Applicant belongs. It was only in the replying affidavit that he named Premier Hotels as the allegedly correct party to the agreement. 2
3 [5] The deponent to the answering affidavit questioned the applicant s bona fides because this was the first time that the applicant had raised the existence of another party to the agreement. The deponent pointed out that no documentation in support of this defence had been produced by the applicant, nor had the applicant, either verbally or in correspondence, ever mentioned another entity. Correspondence between the parties was annexed to the answering affidavit, which recorded an ongoing dispute about payment in respect of the various projects of the applicant in relation to which the respondent had provided professional services. The heading to two of the respondent s letters was OUTSTANDING FEES BY NV PROPERTIES AND OTHER ALLIED COMPANIES. The Form of Tender documents issued by the respondent (part of their services was to call for tenders for the work) were also annexed to the answering affidavit and in that documentation the employer was named as the applicant. [6] In the replying affidavit Nassimov said that the respondent was aware that there were other companies for which it provided services. He referred to the heading to the letters which included the words AND OTHER ALLIED COMPANIES. He listed various projects, in some of which the applicant was the employer and in the others, including The Moorings, another company was the employer. He also said that the name of the employer in the tender documents had been inserted by the respondent. He annexed invoices from the
contractor which did the work on the project, and the client named in the invoices was Premier Hotels. [7] For the purposes of rescission, the applicant does not have to persuade the court that the probabilities favour it. It is sufficient if an issue fit for trial is raised. The contents of the applicant s affidavits do not indicate a lack of bona fides. It will be noted that he acknowledged that in some of the projects the applicant was the employer. The respondent was also obviously aware that other companies besides the applicant were involved in the projects. I am satisfied from the contents of the applicant s affidavits that the issue of the correct contracting party is one that is fit for trial. If the applicant establishes at the trial that the agreement was concluded between the respondent and Premier Hotels, it will successfully resist the claim. [8] The applicant has therefore shown good cause for the rescission of the judgment. I do not think that the application was vexatiously opposed and will make a costs order accordingly. [9] Order [9.1] The judgment granted against the applicant on 11 August 2011 is rescinded. [9.2] The costs of the application are to be costs in the cause. 4
5 J M ROBERSON JUDGE OF THE HIGH COURT Appearances: For the Applicant: Adv D de la Harpe, instructed by Netteltons Attorneys, Grahamstown For the Respondent: Adv K Watt, instructed by Neville Borman & Botha Attorneys, Grahamstown