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[2015] ZAGPJHC 165
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Mont Blanc Construction (Pty) Ltd v Stair Cases Johannesburg (Pty) Ltd t/a Coolstair (2015/16799) [2015] ZAGPJHC 165 (5 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/16799
DATE:
05 AUGUST 2015
In
the matter between:
MONT
BLANC CONSTRUCTION (PTY)
LTD
...............................................................
PLAINTIFF
And
STAIR
CASES JOHANNESBURG PTY LTD
T/A
COOLSTAIR
..............................................................................................................
DEFENDANT
J
U D G M E N T
SWARTZ
AJ
[1]
During or about February 2014 and at Johannesburg, the parties
concluded an oral agreement in terms whereof the respondent would
supply and fit staircases (“the works”) at the
applicant’s construction site located in Hyde Park,
Johannesburg.
The applicant paid a deposit of R380 801.50. The
applicant allege that the respondent commenced with the works but
breached the
agreement by failing to deliver and complete the works;
caused various delays on the site; caused handover of the site to the
client
to be delayed and failed to complete the works within an
agreed or reasonable time. The agreement was cancelled. Works
completed
on the construction site amounted to the value of R181
881.14. Summons was issued for the repayment of R198 920.38,
being
the difference between the deposit paid and the quantity of the
works actually completed.
[2]
Gail Maier (“Maier”), the sole member of the respondent,
filed an affidavit resisting summary judgment. She avers
that the
respondent has a
bona fide
defence, a counter claim and that defence was not entered purely for
the sake of delay. The contract price for the works to be
completed
amounted to R599 900; the applicant was required to pay a deposit of
65% that amounted to R389 935; the project would
start in March 2014
and would be completed within a reasonable time. No completion date
for the works had been agreed upon. Circumstances
beyond the
respondent’s control, a steel workers strike, caused delays in
the completion of the work. Despite this, the respondent
had taken
all possible steps to ensure continuation of the project. The
contract was cancelled. The applicant’s reconciliation
of the
works done is disputed. An expert assessment quantifying the amount
of work done is required. As a result of the dispute,
the application
is not based on a liquidated amount of money. The respondent filed a
counter claim, alleging that the applicant
committed a serious breach
of the agreement by intimidating the respondents workers; barring the
respondent access to the site
and thus prohibiting the respondent
from completing the work in terms of the agreement. The respondent
alleges that it has a counter
claim for the full contract price and
the balance due of R219 098.50.
[3]
At the commencement of these proceedings the parties agreed that the
respondent be granted leave to defend. It is common cause
that the
parties entered into an agreement in terms of which the respondent
would perform the works; that the applicant paid the
respondent an
amount of R380 801.50; that certain works were in fact rendered by
the respondent and that the contract was cancelled.
In issue is the
value of the works completed and the counterclaim.
[4]
The only issue this court has to determine is the applicant seeking
summary judgment for payment of the sum of R64 945.50. The
applicant
bases its claim on an acknowledgement by the respondent that it is
indebted to the applicant in the amount of R64 945.50.
The respondent
on the other hand raises a defence of specific performance, that it
is entitled to claim the full contract price
and that the amount of
R64 945.50 remains in dispute.
[5]
Correspondence exchanged between the parties reflect a dispute
arising and the applicant addressing a letter to the respondent
on 22
August 2014 demanding a refund of R198 920, 36. In response to this
the respondent addressed a letter to the applicant on
27 August 2014
saying:
‘
As
far as our reconciliation goes, we have managed to complete ten (10)
staircases and nine (9) walls…As such, we do not
recognise the
value of, as you put it, “our entity is indebted to Mont Blanc
(Pty) Ltd in the amount of R198 920,35”
but rather, we can only
acknowledge Rand 64 946.50 as the amount due by us to Mont Blanc’.
It
was submitted that the plaintiff seeks summary judgment for an amount
that is common cause and acknowledged between the parties.
Further,
that the defence raised is bold, vague and sketchy and that the
counterclaim is without merit. The applicant submitted
that the
respondent fails to comprehend and acknowledge that the agreement has
been cancelled and that the cancellation and validity
thereof has not
been placed in dispute. Furthermore, that the respondent failed to
allege performance in terms of the agreement
and that it has tendered
its performance of its contractual obligations. The contract was
cancelled and incapable of resuscitation.
The respondent on the other
hand contends that it was barred by the applicant from performing its
duties in terms of the contract.
The respondent was locked out of the
premises and could not perform, even if it had wanted to. There was a
complete breakdown in
the relationship. Even though the respondent
tried to return and complete the agreement, it was precluded from
doing so. Although
the R64 946.50 was admitted, it was done at a
stage when the contract was still ongoing. The applicant breached the
contract before
cancellation thereof. With regard to the respondent
acknowledging the amount claimed, Maier in her opposing affidavit
says the
following:
‘
I
admit that during the time when I was still under the assumption that
the agreement had not yet been cancelled, I admitted on
behalf of the
respondent that an amount of R64 946.50 was due to the Applicant
based on the work completed minus the money paid.
‘
[6]
The amount of R64 946.50 appears to have been paid as part of the
deposit for completion of the works. There is a factual dispute
between the parties which has to be resolved by the trial court. The
amount of R64 946.50 forms part of the amount in dispute.
It is not
for this court to decide whether the respondent’s counterclaim
is bad in law and without merit. Despite the respondent
in a letter
acknowledging indebtedness of the amount claimed, she submits that it
was done at a time when she assumed that the
agreement had not, at
that stage, been cancelled. As this issue remains in dispute, I
cannot find that the amount claimed is for
a liquidated amount of
money. This court cannot summarily shut the door for the respondent.
The respondent will be severely prejudiced
should it be precluded
from ventilating all the issues properly before the trial court,
including whether the respondent acknowledged
its indebtedness to the
applicant for payment of the sum of R64 946.50, and the circumstances
under which it was made.
Order:
The
respondent is granted leave to defend, costs in the cause.
SWARTZ
E
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION
JOHANNESBURG
DATE OF HEARING:
17JULY 2015
DATE
OF JUDGMENT: 5
TH
AUGUST 2015
COUNSEL
FOR PLAINTIFF: W C CARTENS
INSTRUCTED
BY:
COUNSEL
FOR DEFENDANT: V OLIVIER
INSTRUCTED
BY