About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2013
>>
[2013] ZAGPJHC 50
|
|
Wastie v McConnahie and Another (41754 /2012) [2013] ZAGPJHC 50 (11 March 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 41754 /2012
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
11/03/2013
In the matter between:
Wastie:
Michelle
Applicant
and
McConnahie:
Adam Charles
First Respondent
Faurie Nell
Inc
Second Respondent
JUDGMENT
Mia
AJ
:
[1]
The applicant brought an application to interdict the second
respondent from paying
out the proceeds of the sale of the property
Erf [....], Parkhurst situated at No [....], [....] Street,
Parkhurst, Johannesburg
(the property) to the first respondent. The
applicant is a major female photographer currently in Johannesburg.
The first respondent
is a major male photographer also based in
Johannesburg. The second respondent is a firm of attorneys with it
place of business
in Dunkeld West, Johannesburg. The second
respondent is the firm of attorneys attending to the registration and
transfer of the
property situated in 14h street, Parkhurst. The
applicant claims half of the proceeds of the sale of the property as
her share
of a universal partnership which she stated existed between
the parties. The purpose of the application is to ensure that the
half
portion of the proceeds of the sale is secured until the outcome
of the action relating to the universal partnership is determined.
The first respondent opposed the application. The second respondent
abides the decision of the Court.
[2]
The parties were involved in a relationship since approximately 2005.
There are differently
versions of whether this relationship was
interrupted or continuous. During this period the parties engaged in
joint projects.
They invested in properties, renovated them and hoped
to sell the properties at a profit. At least one of the properties,
namely
the Gleneagles property, on the respondent’s version
yielded a profit and the proceeds were shared. The parties also
commenced
a business venture in the field of photography known as
Flamingo Photography. The business relationship ended when the
personal
relationship between the parties ended and the applicant
moved to Cape Town to start afresh. The applicant relies on various
email
correspondence exchanged during this period to demonstrate that
the first respondent is still indebted to her upon dissolution of
the
universal partnership.
[3]
The first respondent denies that the applicant was the registered
co-owner of the
property. He does however concede that the applicant
assisted the contractor with the management of the renovation. The
first respondent
denies that any monies are due to the applicant as a
result of the universal partnership and stated in his opposing
affidavit that
he undertook to assist the applicant after she moved
to Cape Town because “after being together for so long, I felt
I could
assist her.” The first respondent also stated that he
gave the applicant R377, 538.00 in total after their relationship
terminated
without any obligation to do so. The first respondent
indicated in his opposing affidavit that he undertook to assist the
applicant
in the event the property was rebonded. The property was
not rebonded and was sold at a price which yielded a profit. The
first
respondent now denies that the applicant is entitled to receive
any monies from the proceeds of the sale of the property.
[4]
The requisites for an interim interdict are (a) a right which though
prima facie established
is open to some doubt; (b) a well -grounded
apprehension of an irreparable injury; and (c) the absence of an
ordinary remedy. In
exercising this discretion the Court is required
to weigh, inter alia, the prejudice to the applicant if the interdict
is withheld
against the prejudice to the respondent if it were
granted.
[5]
On the papers on the respondent’s version there was a “long
“ relationship
and the parties entered business ventures
together. The first respondent initially agreed to assist the
applicant with her costs
in relocating to Cape Town and then changed
his mind in about October 2012 when he declared that he could no
longer do so. The
first respondent stated that the funds were his and
he required same to pay creditors. Whether the basis for offering the
assistance
was the long relationship the parties shared, the business
ventures joint and individual or some other basis is not clear on the
papers as there appears to be a dispute in this regard.
[6]
It appears that the applicant is concerned that the first respondent
would not be
in a position to satisfy her claim if the action was
successful. The first respondent denies the claim and claims the
funds as
his own. The prejudice to the applicant if there are no
funds to satisfy her claim is obvious. If the interdict is not
granted
and the applicant was successful she would be prejudiced if
the funds due to her were used by the first respondent. The first
respondent
on the other hand had not raised any prejudice to himself
if the interdict were granted. He makes a vague reference to
creditors
but does not deal with these claims or any prejudice to
himself satisfactorily. He attached various receipts for purchases of
materials
to cover the renovation of the property but did not deal
with who the creditors were and what amounts are due to these
creditors.
If the interdict is granted and the first respondent was
successful in the action the monies would be paid out to him with
interest.
In the circumstances the applicant has demonstrated a
balance of convenience in her favour. Accordingly I am of the view
that an
interdict should be granted restraining the second respondent
from paying out a portion of the proceeds namely R307 000.00
and
not to make payment pending the finalisation of the action instituted
under case number 41754/2012 in the South Gauteng Provincial
Division
of the High Court. In view of there being no opposition from the
second respondent it is not appropriate to make any costs
order
against the second respondent.
[7]
In view of the above the following order is granted:
1.
The second respondent is
interdicted and restrained from paying out R307 000.00 of the
proceeds of the sale of the property
Erf [....], Parkhurst
Johannesburg to the first respondent or any other person or
institution nominated to receive such funds by
the first respondent.
2.
The orders in paragraph 1
above are to operate as an interim order only, pending finalisation
and the decision in the action instituted
by the applicant against
the first respondent under the same case number.
3.
The first respondent is ordered to pay the costs of application.
S
Mia
Acting
Judge of the South
Gauteng
High Court, JHB
Counsel
for the applicant:
Adv. G Beytel
Instructed
by:
JL Van Der Walt Attorneys
Counsel
for the first respondent:
Adv.
A Wilcox
Instructed
by:
Steve Merchak Attorneys