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[2019] ZAGPPHC 371
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Mercedes Benz Financial Services SA (Pty) Ltd v Bryer (82880/2017) [2019] ZAGPPHC 371 (29 April 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case
No: 82880/2017
29/4/2019
In the matter between:
MERCEDES
BENZ FINANCIAL SERVICES SA (PTY) LTD
Plaintiff
and
ERIC
LEIGH BRYER
Defendant
JUDGMENT
D S FOURIE, J:
[1]
This is an application for summary judgment which is opposed by the
defendant. The
plaintiff claims the return of a certain motor vehicle
and requests an order in terms whereof the quantum portion of the
plaintiff's
claim be postponed
sine die.
[2]
It is alleged in the particulars of
claim that on 31 March 2014 the plaintiff and the defendant entered
into a written Agility Finance
Agreement in terms whereof the
plaintiff leased to the defendant a certain Mercedes Benz C200 BE
Avantgarde motor vehicle against
payment of 35 (thirty five) monthly
instalments the amount of R6 285.67 and a final residual payment of
R296 367.76. The agreement
provides that notwithstanding delivery of
the vehicle, ownership thereof shall remain vested in the plaintiff,
unless the defendant
has chosen to settle the account by paying the
full amount due at the time whereafter ownership will pass onto the
defendant.
[3]
According to the plaintiff the defendant
has breached the agreement in that he has failed to make payments as
provided for in the
agreement as a result whereof the amount in
arrears was R296 367.76 on 3 November 2017. It is also alleged that
the agreement was
cancelled as a result of the defendant's failure to
pay the said amount.
[4]
The defendant has admitted the written
agreement upon which the plaintiff relies. According to him he is not
indebted in the amount
of R296 367.76 or any other amount. He has
pleaded his defence as follows:
"I also refer to another schedule
headed Mr Eric Leigh Bryer and my identity number and reconciliation
of instalments owing.
In this reconciliation, the principal debt is
R413 374.80 and the contract start date is given as the 3151 March
2014. It will
be observed that in the second column, headed 'cash
flow amount', the monthly instalment of
R6
248.89 beginning 1 May 2014 together
with
a
further
debit of R36.78 has been paid every single month without fail. On the
1st April 2017 the last instalment of
R6
644.28 was paid. There has never been
a
default
on my part. It is therefore an incorrect assertion on the part of the
plaintiff to allege that have failed to pay amounts
under the
agreement.
"
[5]
He then also states that the amount of
R296 367.76 is clearly a reference to a guaranteed residual under the
option of an Agility
Agreement. In the schedule of the agreement the
amount of R296 367.76 appears opposite the words
"Final
Instalment/Rental/Residua/ Payment/GFV".
According
to the defendant the acronym
"GFV"
stands for guaranteed future value
and the amount of R296 367.76 is the guaranteed residual. He then
concludes by saying:
"I have not chosen to finance the
agreement
or to
purchase
it in one Jump sum payment and there is no provision made in the
agreement for the plaintiff to claim the value of the
GFV."
[6]
The problem with this explanation is
that it totally ignores the
"finance
details and cost of credit"
as
they appear in the schedule of the agreement. The particulars thereof
are as follows:
(a)
Cash
price of vehicle
R329
000.00
(b)
Total
additions
R
33 609.47
(c)
Total
VAT
R
50 765.33
(d)
Total
cash price
R413
374.80
(e)
Deposit
R
0.00
(f)
Principal
debt
R413
374.80
(g)
Add
finance charges
R108137.08
(h)
Balance
payable
R521
511.88
[7]
Having regard to the balance payable of R521 511.88, the payment
schedule indicates
the following:
(a)
First payment on 1/5/2014 - R6 285.67.
(b)
Followed by 35 monthly instalments
(from) 1/6/2014 - R6 285.67.
(c)
Final instalment/Rental/Residual
Payment/GFV on 1/4/2017 - R296 367.76.
[8]
In addition to this, a monthly service fee of R50.00 plus VAT is also
payable. A simple
calculation of the service fee, plus the first
instalment of R6 285.67 and 35 instalments of R6 285.67 will soon
indicate that
the aggregate is not even close to the
"balance
payable"
in the amount of R521 511.88 as indicated in the
"Finance Details and Cost of Credit".
It is
therefore clear that the defendant has failed to pay the full amount
of R521 511.88 as he was supposed to do in terms of the
written
agreement. His defence that the amount of R296 367.76represents
the guaranteed future value is therefore without any
merit.
[9]
Counsel for the defendant has also argued that the particulars of
claim does not disclose
a cause of action. I do not agree with this
submission. The particulars of claim, read with the written agreement
as an annexure,
clearly sets out the plaintiff's cause of action. In
the result I am of the view that the defendant has failed to disclose
a
bona fide
defence and therefore summary judgment should be
granted.
ORDER
Summary judgment is granted against the
defendant as more fully set out in the draft order attached hereto
marked
"X".
D
S FOURIE
JUDGE OF THE HIGH COURT
PRETORIA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 82880/2017
On
this the 4
th
of April 2019, Before the Honourable Judge
Fourie
In
the matter between:
MERCEDES-BENZ
FINANCIAL SERVICES (PTY) LTD
Applicant
and
ERIC
LEIGH BRYER
Respondent
ORDER
Having
heard argument on behalf of the legal representatives of the parties,
the following order is granted against the Respondent
in favour of
the Applicant:
1.
The
respondent is ordered to return the Mercedes-Benz C200 BE Avantgarde
A/T FIL (W204) motor vehicle with engine number 27186030700144
and
chassis number WDD2040482R324404;
2.
The
quantum
portion
of the plaintiff's claim is postponed
sine
die;
3.
Costs
of suit on the scale as between attorney and client.
BY
ORDER OF THE COURT