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[2019] ZAGPJHC 228
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Steve Merchak Attorneys v G G (16755/2018) [2019] ZAGPJHC 228 (4 July 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 16755/2018
DATE
:
2018-07-04
In
the matter of
STEVE
MERCHAK
ATTORNEYS PLAINTIFF
and
G
G DEFENDANT
JUDGMENT
VICTOR
J
:
The
issue for determination is whether summary judgment should be ordered
for payment of the applicant’s fees or whether partial
summary
judgment can be ordered in respect of certain of the justiciable
issues appropriate for the grant of summary judgment proceedings.
Those limited issues would include payment by the plaintiff to third
parties such as counsel and the like.
The
plaintiff is an attorney who rendered professional services at the
behest of the defendant in respect of her divorce.
On
9 January 2014, and at Sandton the parties entered into a partly oral
mandate agreement and partlywritten. The material
and express
terms were that the defendant engaged the professional services of
the plaintiff to institute divorce proceedings and
to attend to all
legal process ancillary to her divorce action.
The
plaintiff's standard terms and conditions applied to the legal
services. The plaintiff would be responsible for supervising
the services. The rates would vary according to the type of
legal service rendered. The rates would be reviewed regularly
and could change during the course of the matter. The plaintiff
would charge the defendant for services provided by himself,
his
clerks, professional assistants or other personnel. She would
be responsible for payment of all those disbursements such
as –
including searches in respect of title deeds, company searches and
for the payment of counsel's fees.
It
would appear that the defendant at some stage became disgruntled with
the services that she was receiving. She advised
the plaintiff
that she wanted a divorce settlement in the sum of R10 million and
when it appeared to her that her action was being
delayed at the
instance of the plaintiff, she then entered into a settlement
agreement directly with her husband where she only
received an amount
of approximately R3 million. She was dissatisfied with the
settlement. The settlement agreement between
the defendant and her
husband is also referred to in the particulars of claim.
Be
that as it may the plaintiff accepted her repudiation of the
agreement and then sued for his fees.
The
sum in respect of which the plaintiff sues for his fees and
disbursements is R1 254 144.05, together with interest
and
costs of suit.
I
had to consider a condonation application for the late filing of the
opposing affidavit. Initially the defendant indicated when
the matter
was called, that they would bring a condonation application and
thereafter that changed on behalf of the defendant and
she rejected
the notion that there should be condonation.
Be
that as it may the condonation application loomed large in particular
in relation to the rules of court and the disjuncture between
the
rules of court and the practice manual, and in particular in relation
to the counting of the dies, as to whether they would
be court days
or not.
I
have considered the law carefully and I am of the view that
condonation should be granted to the defendant for the late filing
of
the opposing affidavit. In
South
African Breweries Ltd V Rygerpark Props (Pty) Ltd And Others
1992
(3) SA 829
(W) it is clear that the court has a wide discretion to
grant condonation for the late filing of an opposing affidavit. I
come
to the conclusion that the defendant is entitled to condonation
save of course that the costs must be born by the defendant in
respect of the condonation, and those costs must include the costs of
29 May 2018.
I
have already referred to the equivocation on the part of the
defendant as to whether the condonation was going to be brought or
not, and in the end the matter had to be postponed so that an
affidavit in respect of condonation was to be filed.
The
plaintiff then sought to answer to those allegations and what
happened then is that the plaintiff filed a prolix affidavit setting
out matters in the guise of dealing with condonation but in fact
amplifying the merits of her defence. In effect having a second
bite
at the cherry so to speak.
I
have had regard to that affidavit and the new matter in that
affidavit I disregarded.
As
to the defendant's defence, in the affidavit resisting summary
judgment she confirmed that the agreement was partly oral and
partly
a written mandate agreement in terms of which legal services were to
be rendered [mechanical problem]. It is clear
to me that the
plaintiff was cautious before launching the rule 43 application, as
well as the summons. He considered the defendant’s
legal
position and the merits of her claim very carefully. Quite clearly
there were counsel involved and other costs in relation
to not only
the issue of the summons but also in relation to the rule 43
application.
She,
as I have indicated, became unhappy. She believed she had been
overcharged in many instances, and it was submitted by
counsel that
summary judgment in these circumstances should not be granted.
On
behalf of the plaintiff a concession was grudgingly made, that if the
court was not to grant the summary judgment in the full
amount of
R1 254 144.05 then the court should at least grant the
order for the experts, and that amount is R469 760.20.
On
behalf of the plaintiff it was argued that the lack of
bona
fides
on the part of the defendant is
clear. In this regard she did not attend the taxation of his
bill of costs, she also did
not refer the matter to the Law Society
for a review of the costs, so the plaintiff, in the result, obtained
a taxed bill of costs
and it is on this basis that he sues for
summary judgment.
The
defendant claims that her first defence is that the plaintiff was
negligent in that he took six months to institute the divorce
proceedings. The second defence is that he should be disallowed
his fees as a result of his negligent failure to perform
his mandate
and in this regard curiously she failed to deal with those invoices
that were taxed and which she wished to attack.
She simply says
that the charge of R1 254 144.05 was absurd in the
circumstances because he had done precisely nothing.
Well
the documentation found of record gainsay that allegation. She
concedes that there were consultations and that her erstwhile
advocate Amandalee de Wet was involved in those consultations but she
says by way of example that the plaintiff charged for 3.25
hours and
not 2.5 hours, and submits that there is an hour difference in those
– in that time and therefore the court should
not grant summary
judgment.
It
is clear to me that there are disputes about the plaintiff's
computation of the rendering of the amount for such services
and
there is also a further deduction which is of concern, namely the
amount for legal costs that she received, when she was awarded
costs
at the Rule 43 stage.
I
find that the affidavit of the defendant is very bald, however, I am
mindful that there are disputes in relation to the plaintiff's
fees.
However, in that very bald affidavit resisting summary judgment she
does not attack the fees that the plaintiff had
to pay to the various
service providers. Counsel on behalf of the plaintiff advised
that that amount was the sum of R469 760.20
and having made that
submission the defendant did not ask for time to stand down to deal
with that figure of R469 760.20.
In
my view the defendant has failed to place before court a
bona
fide
defence in respect of those
payments and I accordingly grant summary judgment as set out in the
notice of motion for that amount.
The
order that I make is:
1.
The defendant's application for condonation
is granted.
2.
The defendant is to pay the costs including
the wasted costs of 29 May 2018, taxable and payable
immediately.
3.
The defendant is to make payment to the
plaintiff in the sum of R469 760.20, together with interest
thereupon from 1 September
2017 to date of payment at the prescribed
rate.
4.
I grant leave to defend the remainder of
the plaintiff's claim
5.
The defendant is to file her plea within 20
days from date of this order
6.
The defendant is ordered to make payment of
the summary judgment application in respect of this partial order
that I granted, and
such costs are taxable and payable immediately.
JUDGE
M VICTOR
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION