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[2011] ZAECPEHC 37
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Helderberg Car & Propshaft Centre CC t/a Propshaft Centre v Nexor 519 CC t/a Protec Crane Hire (2582/08) [2011] ZAECPEHC 37 (27 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
CASE NO: 2582/08
DATE HEARD: 24/05/2011
DATE DELIVERED: 27/05/2011
In the matter between
HELDERBERG
CAR & PROPSHAFT CENTRE CC
t/a PROPSHAFT CENTRE
….......................................................................
APPLICANT
and
NEXOR
519 CC t/a PROTEC CRANE HIRE
…......................................
RESPONDENT
JUDGMENT
ROBERSON J:-
The respondent instituted action in
this court against the applicant for payment of damages for breach
of contract. The claim
arose from alleged defective workmanship on
the part of the applicant in carrying out repairs to two of the
respondent’s
cranes, a 180 ton crane and a 55 ton crane. The
trial proceeded before me and judgment was granted in favour of the
respondent
for the damages claimed, being the amounts paid to the
applicant for the defective work, and the reasonable and necessary
costs
incurred in repairing the damage caused by the defective work.
The applicant has applied for leave
to appeal in respect of the quantum of damages only, on the basis
that the evidence on behalf
of the respondent was inadequate in
proving the damages. The application is restricted to the costs of
repairing the damage caused
by the defective work.
The expert witness who testified on
the quantum of damages in respect of the 180 ton crane was Bruce
Ferreira, a member of the
respondent. The damages claimed were made
up of a quotation for parts in the sum of R198 823.27, and an
invoice from the applicant
for repairs effected to the crane after
it was damaged, in the sum of R35 368.50. This latter amount has not
been paid to the
applicant and is apparently the subject of an
action in the Magistrate’s Court. In the expert notice,
Ferreira’s
expertise was stated as a government ticket in
mechanical engineering and 17 years’ experience working with
cranes. When
he testified he said that the respondent does not
employ mechanics, and repairs and servicing of cranes are
outsourced. He also
said that he is not a mechanic nor is he an
expert in electronics, hydraulics or brakes. However he has had
cranes repaired many
times and knew what it cost to repair a crane,
and confirmed the opinion in the expert notice that the costs of the
repairs were
reasonable and necessary. Having regard to the
authorities referred to by the applicant and the nature of the
damages claimed,
I am of the view that there is a reasonable
prospect that another court would find that the evidence of Ferreira
was inadequate
in respect of the sum of R198 823.27. I was of the
view that the sum of R35 368.50 was claimed, not because it had been
paid,
but because the invoice was a method of quantifying the
respondent’s damages. However I am of the view that in the
light
of the fact that it has not been paid, there is a reasonable
prospect that another court would find that there was no legal basis
for claiming such amount, alternatively that it was not proved that
those costs were reasonable and necessary.
The damages in respect of the 55 ton
crane were made up of 3 invoices: one from Metro Hydraulics for R7
500.00, the second from
E & M Electrical Supplies for R22 755.20
and the third from P.E. Airbrakes for R3 810.45. In addition to
Ferreira’s
evidence that the costs were reasonable and
necessary, Etienne Herselman, the owner of E & M Electrical
Supplies, testified
in connection with his invoice, and Deon
Knickelbein, the owner of P.E. Airbrakes, testified in connection
with his invoice.
Herselman was not qualified as an expert, but
Knickelbein was, and his evidence about what he charged for repairs
was not challenged.
Again I am of the view that having regard to the
authorities to which I was referred and the nature of the damages
claimed, there
is a reasonable prospect of another court finding
that, with the exception of Knickelbein’s evidence, the
evidence to prove
the damages in respect of the 55 ton crane was
inadequate.
ORDER:-
[5] The application for leave to
appeal is granted to the Full Bench, except in respect of the amount
of R3 810.45, contained in
annexure E3 to the respondent’s
particulars of claim.
[6] The costs of the application are
to be costs in the appeal.
______________
J.M.
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
Applicant:
Advocate H de la Ray, instructed by Visagie Vos, c/o McWilliams &
Elliot Inc., Port Elizabeth
Respondent:
Advocate O H Ronaasen SC, instructed by Richard Lawrence Attorneys,
Port elizabeth