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South Africa: Western Cape High Court, Cape Town
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[2010] ZAWCHC 534
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Fishof 1207 CC v Rapiddough Properties 459 CC (8763/07) [2010] ZAWCHC 534 (8 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
8763/07
DATE
:
8
November 2010
In
the matter between:
FISHOF
1207 CC
…...............................................................................................
Plaintiff
and
RAPIDOUGH
PROPERTIES 459 CC
…..............................................................
Defendant
JUDGMENT
VELDHUIZEN,
J
Plaintiff
sues the Defendant for the payment of commission on the sale of two
properties. It appears from the pleadings that it
is common cause
that the Defendant on the 17 March 2007 granted an exclusive mandate
to Fine and Country. The evidence before me
shows that Fine and
Country was a trade name under which the Plaintiff in terms of a
franchise agreement did business as estate
agents in real estate. It
is common cause on the pleadings that the Defendant during the period
of which the exclusive mandate
was operative itself sold the
properties for the amounts of R1.8 million and R2.2 million
respectively.
Mr
Peter Ford, whom I allowed to appear before me on behalf of the
Defendant, raised various points, to be more specific, really
only
two. The first being that the mandate nowhere contains the name of
the Plaintiff Fishof 1207 CC. As I mentioned, this should
not stand
in the way of the Plaintiff coming forward as the principal and suing
the Defendant. It is trite law that the second
point taken by the
Defendant cannot succeed, that being that the Plaintiff was not the
effective cause of the sale of the properties
and that there was
nothing in the agreement precluding the Defendant from marketing the
property itself and itself concluding the
binding sale therefore. It
is true they may well do that, there is nothing to preclude them from
doing that, but it is trite law
that in the circumstances they will
be liable for commission if they conclude such a sale during the
period which the exclusive
mandate was operative. That is exactly
what happened here and on the evidence before me, I can see no reason
why the Plaintiff
should not succeed.
In
my view they have, on a balance of probabilities proved their case
and they are entitled to the commission set out in the agreement
of
7.5% on the sale of the properties. The agreement also allows for
value added tax to be added to the commission and, in my view,
they
would also be entitled to that.
Mr
Ford on two days last week and the week before applied for the matter
to be postponed and after hearing him, I last Friday refused
the
application for postponement and ordered that costs for the two
wasted days in dealing with the application for postponement
would
stand over for later determination. It is clear to me that there was
no merit in the application and that the Plaintiffs
are entitled to
their costs of the two days wasted. In the circumstances, it is my
judgment that:
1.
The Defendant be ordered to pay the sum of R300 000 plus VAT to the
Plaintiff.
2.
Defendant is further ordered to pay interest on the sum of R300 000 a
tempore
morae
to
date of payment.
3.
And lastly, Defendant is ordered to pay the costs of the action
including the wasted costs of the two days spent in the application
for postponement.
4.
The costs include the qualifying fees of the Plaintiff's
VELDHUIZEN,
J