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[2011] ZAGPPHC 35
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Page-Shipp v Manor Ridge Body Corporate and Others (46363/10) [2011] ZAGPPHC 35 (28 March 2011)
IN THE HIGH COURT OF
SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
NOT REPORTABLE
CASE
NUMBER: 46363/10
DATE:
28/03/2011
In the matter
between:
ROY JOH M
PAGE-SHIPP
........................................................
APPLICAN
T
And
THE MANOR RIDGE BODY
CORPORATE
..............................................................................
FIRST
RESPONDENT
MADELEINE
SPENGLER
..........................................................
SECOND
RESPONDENT
CONSTANT JOHANNES
LAUBSCHER
...................................
THIRD
RESPONDENT
AG
VOSTER.
.............................................................................
FOURTH
RESPONDENT
N
KOTZE
........................................................................................
FIFTH
RESPONDENT
REASON FOR JUDGMENT
MAVUNDLA J,
[1], The parties
reached an agreement which was made an order of the Court in terms of
which:
1.1 The first
respondent is ordered to convene a special general meeting on or
before 31 May 2011 to decide, the following issues:
1.1.1 Whether the
first respondent must collect the sum of R9, 864.00 from the eight
applicants in the arbitration proceedings;
1.1.2 Whether the
trustees should enrol the urgent application in terms of Rule 41(10©
for an order directing the previous
trustees to pay the costs thereof
de bonis proprils.
1.1.3 Whether the
First respondent will pay, legal fees payable to Weavind &
Weavind and Adv Booysen for legal services rendered
to the current
trustees in the urgent application. It is alleged that, Weavind &
Weavind were only mandated after 15 July 2008.
[2] The parties were
not agreed as to who should pay the costs. I however made an order
"2. That the applicant pays the costs
of this application."
I stated that I will give reasons in respect of the costs order I
gave. These are the reasons for this
order.
[3] It is trite that
the successful party is generally awarded costs. Equally so, it is
trite that costs awards are a matter of
the
2 discretion of the
court. However in the matter of Unimark Distributors (Pty) Ltd v ERF
94 Silvertondale (PTY) Ltd)
1
the successful party was ordered to pay part of the opponent's costs
because he was partially successful and partially unsuccessful.
[4] In the matter of
Michael and Another v Linksfield Park Clinic (Pty) Ltd
2
it was said:
"[5] It is
beyond question that the circumstances of a case may warrant an
order, in the exercise of the Court's discretion,
depriving a
successful party of costs partially or entirely, and even warrant an
order requiring the successful party to pay the
unsuccessful party's
costs— again partially."
[5] The applicant is
a member of the first respondent, its past trustee until 15 July 2008
when he in an Annual General Meeting.
The applicant's chagrin was his
dissatisfaction about certain amount of R49 988, 00 that was paid by
the respondent to certain
attorneys in respect of legal fees that
were reflected in the financial statement for the year end of
February 2009. He was also
not with the explanation proffered to him
by the remaining trustees of the first respondent. The applicant was
further disenchanted
with the fact that the trustees of the first
respondent decided to utilise funds belonging to the first respondent
to make payment
of legal fees for which three of the four trustees
(being the second respondent, the third and fourth respondents in the
present
application were personally liable. He further took the view
that the trustees of the first respondent were not acting honestly
and in good faith in relation to the body corporate and acted in
breach of their fiduciary duties towards the first respondent.
He
then decided to launch this application seeking an appointment of an
Administrator of the Body Corporate of Manor Ridge in terms
of
Section 46
of the
Sectional Titles Act, 1986
for a period of 3
months.
[6] The applicant
was afforded an opportunity to inspect the records of the first
respondent concerning his reservations about the
amounts that formed
the legal fees. Rule 56(a) of the Management of Rules of the first
respondent makes provision of the consideration
of financial
statements and report referred to in rule 37 and 38. In my view,
there is nothing that precluded the applicant in
calling for the
tabling of his misgivings for discussion in a general meeting.
Besides, according to the respondent a proper explanation
was given
as to how the legal fees that raised the ire of the applicant were
discussed and explained3. In motion proceedings, where
there is a
dispute of fact, the court must decide the issues on the version of
the respondent, together with the admitted fact
of the applicant. I
would then have had to accept that an explanation was furnished to
the applicant, although he was not satisfied
therewith. Surely the
reservations of the applicant could have been addressed by the entire
membership of the Body Corporate, just
as much as the applicant has
eventually agreed to have the Body Corporate deal with these issues.
The first respondent consists
of its members. Whatever amounts it
disburse, in the final analysis it is the membership that carries
these costs. Where a member
drags the membership to court
Paginate page 79
para 11 of the respondent's answering affidavit.
on an issue that
couid have been resolved by the membership in a meeting, any member
who drags the entire membership to court on
issues that could have
been resolved domestically, should bear the costs pertaining to such
action, as in casu. It is for the above
reasons that I decided that
the applicant should bear the costs, rather that these be borne by
the general membership.
N. M. MAVUNDLA
JUDGE OF THE HIGH
COURT
HEARD ON THE
: 04 / MARCH / 2011
DATE OF
JUDGMENT: 28/ MARCH / 2011
APPICANTS' ATT
: KLAGSBRUN DE VRIES & VAN
DEVENTER
APPLICANTS ADV
: C. HARMS
RESPONDENTS ATT
: WEAVIND & WEAVIND
RESPONDENTS ADV : A.
SOUTH
1
2003
(1)SA 204 (T).
2
2001
(3)SA 1188 (SCA) at 1203.