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[2012] ZAECPEHC 49
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Claassen v Mitchley (1215/2009) [2012] ZAECPEHC 49 (21 June 2012)
13
IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 1215/2009
Date
heard: 28 November 2011
Date delivered: 21 June 2012
In the matter between:
CAMBRIDGE CLAASSEN
Plaintiff
and
VANESSA ELAINE MITCHLEY
Defendant
J
U D G M E N T
DAMBUZA J:
The plaintiff issued summons seeking
an order that the defendant render to him a statement of account,
supported by vouchers and
substantiating documents reflecting all
expenses incurred or monies expended by the defendant on behalf of
the plaintiff, relating
to the plaintiff’s immovable
properties situated at High Grove and Robinvale, Port Elizabeth. The
action is defended. The
defendant pleads that she has always
accounted to the plaintiff by delivering to him all source documents
in respect of transactions
undertaken by her as the plaintiff’s
agent. She pleads that because all source documents and/or invoices
relating to the
expenses paid by her on behalf of the plaintiff are
in the plaintiff’s possession, she is unable to account to the
plaintiff.
The background to the dispute is that
from 1998 a friendship developed between the parties. In 2003 the
plaintiff relocated to
Australia where he had secured employment as
a mining engineer. Whilst in Australia, and particularly during the
period starting
from 2003 to 2005 the plaintiff asked the defendant
to look for suitable immovable property in Port Elizabeth for him to
investment
in. This led to the purchase, by the plaintiff, of two
townhouses in Port Elizabeth; one property is referred to as the
High
Grove property and the other as the Robinvale property. These
properties were bought by the plaintiff “off the plan”
in February 2005 and February 2006 respectively. The defendant
facilitated the transfer thereof from the property developer to
the
plaintiff. She was also involved in aspects of construction thereof,
such as choosing fittings and finishes. Thereafter she
supervised
maintenance of the properties whilst they were rented out to
tenants.
To enable the defendant to properly
manage the properties the plaintiff gave the defendant authority to
withdraw moneys from a
bank account which he still maintained in
South Africa. It is these funds that are the subject of these
proceedings. According
to the plaintiff, he also used this bank
account for payment of some of his monthly commitments, such as
insurance policies.
The defendant’s authority to
access funds from the plaintiff’s bank account was given in a
power of attorney in favour
of the defendant executed during 2005.
On 31 May 2006 the plaintiff signed a general power of attorney in
favour of the defendant.
This was intended to extend the defendant’s
authority to properly manage the plaintiff’s affairs,
particularly, his
investments.
According to the plaintiff he started
experiencing difficulties regarding the defendant’s handling
of his affairs as far
back as 2005 when the defendant failed to
account for moneys she had used from the bank account. When the
plaintiff telephoned
her to make inquiries, the defendant would be
too busy to talk and would undertake to phone the plaintiff at a
later stage. That
would not happen. Despite these difficulties the
plaintiff still needed the defendant’s services as an agent,
so he testified.
This is because at times he would be unable to
travel to South Africa when he was required to do so. For example,
at some stage
it became necessary for him to come to South Africa to
sign certain documents in respect of the High Grove property.
Because
he could not do so on time, he was notified that certain
suspensive conditions in the Deed of Sale relating to that property
were to be invoked and that would render the contract of sale
null
and void
. It is for such reasons that the general power of
attorney was executed in favour of the defendant despite the
problems that
already existed. According to the plaintiff he revoked
the Power of Attorney on 7 December 2007, following dissatisfaction
with
the defendant’s failure to account for the moneys used
from his account. The summons was issued on 6 May 2009. In the plea
the defendant denies receiving notification of cancellation of the
Power of Attorney.
On 1 March 2011 an order was granted
by this court, by agreement between the parties. The following is
recorded therein:
a the defendant conceded that she has
a fiduciary duty to account to the plaintiff in respect of monies
received by her from the
plaintiff during the period starting from
November 2004 to May 2007;
b the defendant insisted that she had
accounted to the plaintiff by providing him with all relevant
documentation in her possession
and until such documentation is
returned to her she cannot properly debate the account;
c the plaintiff insisted that he
never received any documentation from the defendant relevant to his
claim; alternatively, that
even if such documents were handed to him,
the mere handing over thereof to him did not constitute an accounting
and debatement
of the monies involved;
d the parties agreed that by 30 June
2011 the defendant would provide the plaintiff with an account of all
monies reflected in annexure
POC2 to the particulars of claim; such
account would reflect payments received by the defendant from the
plaintiff and details
of how the money received was expended;
e the expenditure would be accompanied
by vouchers or explanation as to the reason why there were no
vouchers and there would be
an explanation of the purpose of the
expenditure;
f four weeks after 30 June 2011 the
plaintiff would furnish the defendant with a schedule setting out
items in the defendant’s
account with which he (the plaintiff)
did not agree; and
g the parties would then formulate a
list of disputed items by way of a Rule 37 Minute and then arrange
for debatement of the account.
Despite the agreement which was made
an order of court the defendant failed to provide the account as
provided in paragraph d
above. The plaintiff then drew his own
schedule of moneys received by the defendant from him or his bank
account which, according
to him, were never accounted for. The total
amount is R582 825,00, made up of 50 transactions as follows:
No.
DATE
DESCRIPTION
AMOUNT
19
November 2004
Cash
Loan to V. Mitchley
R
3, 000.00
24
November 2004
Internet
bank transfer to K Arndt
R
5,000.00
25
November 2004
Internet
bank transfer to Arndt
R5,000.00
26
November 2004
International
telegraphic transfer to K Arndt (Germany bank acc.)- amount of
EURO 3526.80 (AU$6,000)
R
38,000.00
29
March 2005
Internet
transfer to Vee Mitchley
R
4, 500.00
09
May 2005
Internet
telegraphic transfer to V Mitchley
R
55,000.00
09
June 2005
Internet
bank transfer to V Mitchley
R
5,000.00
21
June 2005
International
telegraphic transfer to V Mitchley
R15,000.00
22
June 2005
International
telegraphic transfer to V Mitchley
R
50,000.00
12
July 2005
International
telegraphic transfer to V Mitchely
R
30,000.00
04
August 2005
International
telegraphic transfer to V Mitchley
R
50,000.00
14
September 2005
Bank
cheque- Linton Grange
R
50,000.00
22
September 2005
Bank
cheque- Linton Grange
R
10,000.00
03
October 2005
Cash
Loan to V Mitchley for earthworks on her property
R
10,000.00
21
October 2005
Cash
withdrawal- Linton Grange
R
15,000.00
28
October 2005
Cash
withdrawal- Linton Grange
R
15,000.00
25
November 2005
Cash
withdrawal- Newton Park
R20,000.00
09
December 2005
Cash
withdrawal - Linton Grange
R
10,000.00
28
December 2005
Cash
withdrawal -Linton Grange
R
10,000.00
13
January 2006
Cash
withdrawal-Linton Grange
R
10,000.00
23.
03
May 2006
Cash
withdrawal- Linton Grange
R
5,000.00
24.
05
May 2006
Cash
withdrawal- Linton Grange
R
5,000.00
25.
05
May 2006
Cash
withdrawal- Linton Grange
R
5,000.00
26.
19
May 2006
Cash
withdrawal- Linton Grange
R
2,000.00
27.
24
May 2006
Cash
withdrawal- Linton Grange
R8,000.00
28.
07
June 2006
Cash
withdrawal-Linton G.
R
4,800.00
29.
13
June 2006
Cash
withdrawal -Linton Grange
R
5,450.00
30.
15
June 2006
Cash
withdrawal -Linton Grange
R
5,000.00
31.
22
June 2006
Cash
withdrawal- Linton Grange
R
18,540.00
32.
11
August 2006
Cash
withdrawal- Linton Grange
R
2,000.00
33.
14
August 2006
Cash
withdrawal Linton Grange
R
4,800.00
34.
21
August 2006
Cash
withdrawal- Linton Grange
R
6,000.00
35.
19
September 2006
Cash
withdrawal- Linton Grange
R
4,000.00
36.
03
October 2006
Cash
withdrawal- Linton Grange
R4,200.00
37.
06
October 2006
Cash
Withdrawal- Linton Grange
R
5,000.00
38.
23
October 2006
Cash
withdrawal- Linton Grange
R
6,700.00
39.
10
November 2006
Cash
withdrawal-Linton Grange
R
8,750.00
40.
22
November 2006
Cash
withdrawal- Linton Grange
R
4,000.00
41.
20
December 2006
Cash
withdrawal- Linton Grange
R
6,200.00
42.
30
January 2007
Cash
withdrawal- Linton Grange
R
9,100.00
43.
16
February 2007
Cash
withdrawal- Linton Grange
R7,690.00
44.
28
February 2007
Cash
withdrawal-Linton Grange
R
5,000.00
45.
13
March 2007
Cash
withdrawal –Linton Grange
R
14,000.00
46.
19
March 2007
Cash
withdrawal –Linton Grange
R
2,495.00
47.
18
April 2007
Cash
withdrawal- Linton Grange
R6,000.00
48.
20
April 2007
Cash
withdrawal- Linton Grange
R10,000.00
49.
04
May 2007
Cash
withdrawal- Linton Grange
R
4,800.00
50.
18
May 2007
Cash
withdrawal-Linton Grange
R
2,800.00
Ordinarily, the
object of a claim for an account and debatement thereof is to enable
the claimant to establish whether the other
party is indebted to the
claimant. A typical claim is for delivery of an account, debatement
thereof and payment of the amount
found to be due.
1
In this case however, the plaintiff only claims (in the summons) the
rendering of the account and debatement thereof. And, as
apparent
from the Court Order of 1 March 2011, the defendant admits that she
has a duty to account to the plaintiff in respect
of the moneys
received by her from the plaintiff.
But, whilst the plaintiff’s
claim, as set out in the summons, is for the rendering of an account
and for debatement thereof,
included in the schedule are moneys
which, on the plaintiff’s own case, were simply lent and
advanced by the plaintiff
to the defendant. There is no claim in the
summons for repayment of moneys lent and advanced to the defendant.
In my view, there would, ordinarily,
be no point in rendering an account and debating moneys lent and
advanced by one party to
the other. But in this case, as stated
above, the parties have agreed and this Court granted an order that
the defendant is obliged
to account for the whole amount of
R582
825,00. The defendant has made submissions and tendered evidence as
an explanation of how she used the moneys that she admits
to have
received from the plaintiff.
My view is that the onus is on the
defendant to furnish a clear explanation of how the money was used.
Mr Jooste who appeared on behalf of
the plaintiff submitted that the defendant has failed to account in
that she failed to furnish
an explanation of how the money was
expended. I agree. The defendant gave no evidence at the trial.
Written “submissions”
on the debatement of the account
were filed on her behalf. The submissions are essentially the
defendant’s responses to
the amounts set out in the schedule
at paragraph 7 above. The evidence tendered on behalf of the
defendant did not, in my view,
constitute a clear explanation of how
she used the moneys, My reasons for this finding appear in the
paragraphs that follow.
But first I refer briefly to the plaintiff’s
evidence.
The plaintiff gave evidence
explaining the background relationship between himself and the
defendant. His evidence in this regard
was not disputed. He then
gave background explanation on each of the items and amounts set out
in the schedule.
The defendant’s friend
Bridgitte van Niekerk and the defendant’s Personal Assistant,
Venitta Job, testified on behalf
of the defendant. Van Niekerk’s
evidence was that she first met the plaintiff when he came to South
Africa on a visit in
September of 2005. On that occasion the
plaintiff stayed at the defendant’s home. When the plaintiff
was to return to Australia
on that occasion, she (Van Niekerk)
packed the plaintiff’s suitcase for him. On that occasion she
saw Venitta Job, give
the plaintiff a “blue clip file”
containing invoices, although Van Niekerk did not herself, see the
contents of the
file.
According to Van Niekerk although the
plaintiff visited South Africa on many occasions thereafter, she
only saw him on two occasions;
the first occasion being September
2005 and second being when he visited in December 2005.
Job’s evidence was that she
made all the cash withdrawals from the plaintiff’s bank
account and she made all the payments
with the moneys withdrawn. She
would then keep the receipts in blue files which he handed over to
the plaintiff when the latter
visited South Africa. According to
her, the last batch of these receipts and invoices were mailed to
the plaintiff in Australia
in a box in which was also packed the
plaintiff’s clothes. This was in June 2006, subsequent to the
plaintiff’s last
visit to South Africa.
Both Van Niekerk and Job were poor
witnesses. They could not provide specific details of the expenses
they testified on and were
decidedly vague on issues they should
have relative detailed knowledge of. Van Niekerk’s evidence
adds minimal if any value
to the defendant’s case; it relates
to time spent by the plaintiff at the defendant’s house. It
would appear, from
the submissions, that the defendant suggests that
the expenses incurred by her as a result of the plaintiff’s
stay with
her should be set off against the moneys that she has to
account for. But no evidence was led on the amount of expenses
incurred
by the defendant as a result of the plaintiff’s visit
for the period referred to.
In respect of items 1 to 3 of the
schedule (a total amount of
R13, 000.00), the defendant’s
explanation is that these moneys were used for the plaintiff’s
benefit when the plaintiff
visited South Africa. But the amounts in
question were received by the defendant during the period between 19
November 2004 and
25 November 2004. This was prior to the visit by
the plaintiff referred to, which was during September 2005. In any
event, apart
from the submissions made, the defendant led tendered
no evidence as explanation of how these amounts were used. Job’s
evidence was that she knows nothing about moneys that were received
prior to the purchase of the properties.
Item 4 (R38 000,00) is, according to
the plaintiff, an amount advanced by the plaintiff to K Arndt, at
the defendant’s request.
The defendant undertook to refund the
amount to the plaintiff. In her submissions, the defendant denies
requesting the plaintiff
to pay the amount to Arndt as alleged. But
once more, the defendant failed to tender any evidence in this
regard.
Items 5 to 11 of the schedule (a
total of R209 500,00) are amounts transferred to the defendant
during the period starting from
29 March 2005 to 4 August 2005. The
defendant’s submission is that the funds were used on the
plaintiff’s properties.
But in respect of all the amounts that
appear on the schedule Job was not able to give details of how,
exactly the money was
used. Her evidence that the file she gave to
the plaintiff during his visit of in September contained a 4cm pile
of receipts
cannot be true in view of the fact that the purchase
price of the Highgrove Property and the construction of a dwelling
thereon
was financed by a bank loan. She also could not explain what
the plaintiff was to make of a pile of cash receipts (the evidence
having been that all expenses were paid in cash to avoid payment of
VAT).
Items 12 and 14 (R70 000,00-14
September 2005 to 03 October 2005) were, according to the defendant
used for the plaintiff’s
benefit or by the plaintiff during
his visit to South Africa in September 2005. The plaintiff conceded
using R10 000,00 of this
amount. He also conceded that he requested
the plaintiff to give R1 500 00 to his mother. Again there is no
evidence of specific
amount(s) used by the defendant for the benefit
of the plaintiff.
Regarding items 15 to 18 (cash
withdrawals amounting R60 000,00:
21 October 2005 to 9
December 2005) the defendant prefaces her submission by a reminder
that she is not able to recall the “service
providers”
who were paid, and then she proceeds to state that she paid a person
by the name of Anton for satellite dishes
(presumably installed at
the Highgrove Property). There is no indication of how much was paid
to Anton. The defendant also states
that she made the following
payments: R28 755,00 for truck loads of levelling soil for the
High Grove property
.
R6384 was paid to Alugutter
for
down pipes; R2650 was paid for a sliding gate; R1571,19 was paid for
washing line poles and R1100,00 was paid for a granite
effect to
columns.
Attached to the defendant’s
submissions are quotes from some “service providers”
vouching for the cost of the
goods supplied and work done. One such
quote is from Alugutter.
It is recorded thereon that
“in
November/December 2005 we did guttering at the above address.
Unfortunately after such a long period we do not have
a copy of the
invoice. However the total gutters =100m with 4 PVC downpipes. Our
rates at the time: R50 00 P/M + VAT & R150
00 per downpipe +
VAT. (Total R6384-00)”.
A letter from Largamor Developers cc
dated 27 May 2011 is also annexed to the submission. The contents
thereof are a confirmation
that
“all
dealings at 7 Robinvale were handled by Mrs Mitchely. Extra overs
attached were paid to us in cash”
.
I can only assume, as no evidence was led in this regard, that the
“extra overs” relate to payments made (in respect
of
further invoices attached to the Largamor invoice) to Zeelie’s
Wrought Iron for a sliding gate installed at High Grove
at a cost of
R2650 00, wash line and other items supplied by Zillie’s
Wrought Iron at a cost of R1571, 17, a quote from
Tessa Woods
relating to
“apply
a granite effect to four columns + vanish”
for R1,100. (as set out in
photographs 22 above).
There are four other quotes or
documents of similar nature, also annexed to the defendant’s
submissions. But there is no
explanation therefore.
Significantly, Job, whose evidence
was that she handled all transactions on behalf of the defendant, as
the latter had an extremely
poor memory, did not give any evidence
or explanation on any of the attached invoices or quotes. Her
evidence was only limited
to stating that she gave the invoices to
the defendant. No attempt was made responding to irregularities on
the invoices as
referred to by the plaintiff. This was in stark
contrast with her evidence that she literally runs the defendant’s
life.
Job did not give any evidence on the invoices.
The plaintiff on the other hand,
conceded that the R1100,00 ( paid for the granite effect) and
R5348,00 ( paid in respect of Defy
products) could have been spent
on the properties as alleged. He also conceded R4902,00 of the
R6384,00 (leaving a difference
of R1482,00) allegedly spent on
downpipes. (Although he had stated in his submissions in reply, that
the downpipes were provided
for in the schedule of finishes for the
property concerned). He further admitted that the amount of R
2650,00 could have been
incurred in respect of repairs done to the
sliding doors after there had been a burglary to one of the
properties. He disputed
all other alleged expenses set out by the
defendant. He pointed out that the properties had “flip up”
washing lines;
therefore there would have been no need for
installation of more washing lines. He also challenged the invoice
relating to the
washing lines as according to the dates reflected
thereon (6 October 2006) construction on the Robinvale property had
long been
completed. In any event this payment precedes items 15 to
18.
Items 20 to 27 relate to cash
withdrawals amounting to R35 000,00 during the period January
2006 to 24 May 2006. The defendant’s
submission is that this
money was used towards the High Grove property and all invoices were
given to the plaintiff. She does
not recall what the moneys were
spent on.
Items 28 to 50 relate to cash
withdrawals amounting to R147 325,00 during the period 7 June 2006
to 4 May 2007. The defendant
submits that these moneys were spent on
expenses relating to both the High Grove and the Robinvale
properties. In respect of
the Robinvale property expenses were
incurred for installation of aluminium gutters – R4073,22,
extra paving R1518,75,
and installation of braai – R3250. All
these expenses are disputed by the plaintiff who also points out
that construction
had long been completed and that contrary to the
explanation by the defendant that the reason she made cash
withdrawals and payments
in respect of the properties was avoid
payment of VAT, the moneys paid, as per the invoices does include
VAT. The most glaring
discrepancy in the defendant’s
explanation relates to withdrawals which continues after the
Robinvale Property was completed
(June 2006).
In the end, the defendant, in her
submissions, only attempted to account for R58 748,16 of the
R582 825,00. The plaintiff
conceded that the amount of R29 818,75
may have been used for his benefit. This amount therefore falls to
be deducted from the
total amount in respect of which the defendant
has to account.
It was submitted on behalf of the
defendant that the amount of
R528 000,00 in respect of which the
plaintiff seeks an account, must be divided into two groups of
moneys; the loans that were,
on the plaintiff’s version,
advanced to the defendant and the moneys withdrawn from the
plaintiff’s account. It was
also submitted that regard being
had to the moneys that the plaintiff had deposited into his bank
account, estimated at about
R900 000,00, and the fact that his
monthly debit orders of about R25 000,00 were paid from the said
amount, the moneys deposited
by the plaintiff over the period in
question are accounted for. But those were not the issues that were
brought before me. The
issue before me, as I understand it, is
whether the defendant, having admitted that she is obliged for the
amount received by
her from the plaintiff, has furnished an account
of those monies.
Although generally the ultimate
intention of a claim for an account and debatement is to establish
money that may be owing to
the claimant, there is, in this case, no
prayer, in the plaintiff’s summons, for payment of such amount
of money as may
be found to be unaccounted for. A submission was
made, however, at the trial, on behalf of the plaintiff that if the
defendant
fails to account for the moneys received then the
defendant must pay the moneys. It seems to me that where, as in this
case,
it is found that a claimant’s money is unaccounted for
or the defendant has failed provide a satisfactory account, there
can be no reason why an order for payment of the outstanding amount
should not be granted. Failure to grant such an order would
lead to
the parties having to incur further legal costs in seeking an order
for payment of the outstanding moneys. I do not think
that could
have been intended by the parties. I have discussed this issue with
legal representatives of both parties and they
are both agreeable
that an order of payment of amounts found to be due should be
granted. I also cannot find any reason why interest
should not be
payable on the amount found to be due where that amount is not paid
within a reasonable time of this judgment.
I am of the view that 30
days would be a reasonable period to allow to the defendant to make
the payment.
Regard being had to the defendant’s
failure to render an account for the moneys received by her from the
plaintiff, these
moneys are due to the plaintiff.
Consequently, an order is granted in
favour of the plaintiff against the defendant for:
Payment of R553,006.25;
Interest on the said amount at the
legal rate with effect from 30 days of this order
3 Costs of suit.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances:
For plaintiff: Adv P E Jooste
Instructed by Wilson Mc Williams INC,
Port Elizabeth.
For defendant: Adv N Mullins
Instructed by Goldberg & Victor,
Port Elizabeth.
1
Amler’s Prcedents of Pleadings ; 7
th
edition at 1.