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[2011] ZAGPJHC 112
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Investec Bank Ltd v McCreedy (48731/10) [2011] ZAGPJHC 112 (17 August 2011)
IN THE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE NO:
48731/10
DATE:
2011-08-17
In the matter between
INVESTEC BANK
LIMITED
.......................................................
Applicant
A
nd
McCREEDY, MARK
WILLIAM
................................................
Respondent
J U D G M E N T
W
ILLIS, J
:
[1] The applicant seeks payment by the respondent
of an amount of R28,5 million, together with interest at a rate of
15,5 percent
per annum from 24 August 2009 to date of payment and
costs of suit on an attorney and client scale. The scale of costs
arises
from the agreement concluded between the parties.
[2] It is common cause that the liability, if any,
of the respondent is dependant upon a suretyship agreement which he
signed for
the debts of a principal debtor known as Greenglades
Properties (Pty) Limited.
[3] It is also common cause that my erstwhile
brother, Blieden J placed Greenglades Properties (Pty) Limited, the
principal debtor,
in liquidation on 29 October 2010. The respondent
has relied on a moratorium agreed between the applicant and the
principal debtor.
After some debate, counsel for the respondent
agreed that the moratorium would not survive the liquidation of the
principal debtor.
In other words, if the principal debtor was
correctly placed in liquidation, the respondent would indeed be
liable in terms of
the written agreement of suretyship, subject, of
course, to the rectification point which I shall address later.
[4] It is common cause that the liquidation order
of Blieden J is subject to an application for leave to appeal. It is
also trite
that Blieden J’s judgment regarding the liquidation
will enjoy, in this court, the status merely of an opinion, upon
which
it would be quite wrong for me to express a view one way or the
other. What I do do, and what I must do, and I am required to by
law
to do, is to take into account the fact that there is in fact a
liquidation order. Therefore, seems to me (and ultimately
it seemed
that everyone was in agreement on this issue) is that the order that
the surety pay the amount must be linked to the
outcome of the
application for leave to appeal. I shall make such an order.
[5] The only remaining issue is the question of
rectification which the respondent relies upon. The respondent
relies upon the
following words that were inserted in handwriting in
an written agreement between the parties:-
It is agreed
that the suretyship at this point wil
l
be reviewed to reflect the 60:40 profit participation between the
client and our deal.
[6]
It is quite clear (I
fully agree with counsel for the respondent on this point) that a
review was envisaged pending the outcome
of uncertain future events
that may have transpired. The respondent alleges that those events
have occurred.
[7] The final clause in this agreement upon which
the respondent relies, however, provides as follows:-
All the above terms and
conditions are subject to Investec board approval and will only be
binding on Investec once incorporated
in a signed loan agreement.
[8] The agreement signed after Investec approval,
also provides for a review, but not in the same terms and, in any
event, provides
that any variation must be agreed to between the
parties in writing. There is no agreement in writing as to the
review or the
quantum of the review. I fully agree with Ms
Fischer
,
counsel for the applicant, that a review is not ‘rectification’.
Review simply means that the position will be looked
at again and in
the light of all the circumstances. The parties might agree upon a
new formula. There are certainly no ‘rectifications’
involved. The ‘rectification point’ cannot succeed.
[9] Accordingly, the following is the order of the
court:-
Judgment is granted in favour of the applicant
in terms of prayers 1 and 2 of the Notice of Motion dated 1 December
2010;
Execution of this order is stayed pending the
outcome of the application for leave to appeal in the judgment of
Blieden J, given
in the matter of Investec Bank Limited and
Greenglades Properties (Pty) Limited (Case number JG/32080), on 29
October 2010.
The costs of this application are to be costs on a scale as between
attorney and client, but are to be costs in the application
for
leave to appeal against the aforesaid judgment of Blieden J.
---oOo---
Counsel for the applicant, Advocate D C
Fischer
SC
Counsel for the respondent Advocate C W
Jordaan
SC (with him, Advocate T M Greeff).
Attorneys fo
r the
applicant: Blakes Mapanga Incorporated.
Attorneys for the respondent
:
Smit Jones and Pratt.