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[2016] ZAGPPHC 562
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Keyes N.O. v Ellinas and Another (62385/2013) [2016] ZAGPPHC 562 (11 March 2016)
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IN
THE
HIGH
COURT OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 62385/2013
DATE:
11 MARCH 2016
In
the
matter
between:
TREVOR
THOMAS KEYES
N.O.
Applicant
and
CHRIS
ELLINAS
First Respondent
JANGO
ELLINAS
Second Respondent
DATE
OF
HEARING:
16 FEBRUARY 2016
DATE
OF JUDGMENT: 11 MARCH 2016
JUDGMENT
MANAMELA
AJ
Brief
background and the applicant's submissions
[1]
In
2005 the first respondent was appointed, in terms of a power
of attorney, by his late father (the deceased), then based in
Nicosia,
Cyprus, to manage all the deceased affairs and properties in
South Africa, and to generally represent him in all business affairs
and dealings in South Africa The power of attorney appears to have
also conferred on the first respondent the power to sell, dispose
of
or transfer the deceased' s properties.
[2]
Exercising his representative powers, the first respondent sold, in
December 2009, to the second respondent (his son and therefore
the
deceased's grandson) immovable property known as [Erf 4…,
Rynfield Township, Benoni] (the property) for an amount of
R650
000.00. The second respondent took transfer of the property in May
2010. The applicant is dissatisfied with the aforesaid
purchase price
paid by the second respondent for the property. He alleges that, to
the respondents' knowledge the purchase price
is substantially Jess
than the fair and reasonable market value of the property. He argues
that there was collusion between the
first and second respondents
(the respondents) in this regard.
[3] The
deceased passed away on 21 January 2010. The applicant was thereafter
appointed executor of the deceased's estate on 22
October 2012.
In
2013, the applicant in his aforementioned capacity issued
summons against the respondents for, among others, cancellation of
the
transfer, or the retransfer of the property back to the applicant
at the second respondent's cost. The action is defended by the
respondents and is allocated for trial on 12 May 2016. This is after
the matter was a subject of a summary judgment application,
which the
respondents opposed.
[4]
In
their
affidavit in opposition of summary judgment, the respondents made
some
averments
which have since gained considerable significance in this matter.
They submitted
that
when the property was sold to the second respondent "it was in a
state of complete disrepair,
was
near
unusable
and
was continuing
to
diminish. The property
was
in dire need of maintenance and substantial repair".
[1]
They
added
that, the second respondent
"
had
to invest
a
substantial
amount of money into
not
only
repairs
and
maintenance
of the
Property
but
in
fact
also
in
effecting
substantial
modifications
and
renovations
"
.
[2]
In
their
view,
due
to"the
modifications, renovations, maintenance and repair" to the
property, the property did not resemble what it was
when it was sold
in
2009.
Therefore, the valuation of the
property,
subsequently
done at the instance of the applicant (and attached to the
particulars of claim), is
disputed.
[5]
The applicant later sought, in terms of Rule 35(3) and request for
further
particulars,
further
details and documents relating to the repairs effected to the
deceased'
property
by the
second
respondent. The Rule 35(3) notice was complied with, except for an
issue of costs, which I have to rule on later herein.
The court
reserved costs on 18
May
2015.
[3]
The
applicant is dissatisfied with the responses by the respondents to
paragraphs 7 and 9 of his request
for
further
particulars. Paragraph 7 of
the
request for further particular is as follows:
"7.
1
The plaintiff requires a list of all maintenance which the second
defendant
has
performed in respect of the property since he became the
registered owner thereof on 11
May
2010 (as alleged
in paragraph 12.2 of the first defendant's
answering
affidavit in the summary judgment application), indicating in each
instance:
7.1.1
the date on which
the maintenance was
performed;
the
person or persons who performed the maintenance;
7.1.3
the
nature of the maintenance;
7.1.4
the
amount which the person or persons who performed the
maintenance
charged;
7.1.5
a copy of the
invoice or statement of the person or persons who performed
the maintenance.
7.2
The plaintiff
requires a list of all repairs which the second defendant has
performed
in
respect
of the property since he became the registered owner thereof on II
May
2010
(as alleged in paragraphs 12.2 of the first defendant's answering
affidavit
in
the
summary judgment application), indicating in each
instance:
7.2.1
the
date on which the repairs was performed;
7.2.2
the
person or persons who performed the
repairs;
7.2.3
the nature of the
repairs;
7.2.4
the amount
which the person or persons who performed the repairs charged;
7.2.5
a copy of the
invoice or statement of the person or persons who performed the
repairs.
7.3
The
plaintiff requires a list of all modifications and renovations which
the second defendant has effected in respect of the property
since
he became the registered
owner thereof on
II
May
2010
(as alleged in paragraph 12.2 of the first
defendant's
answering affidavit in the summary judgment application), indicating
in each instance:
7.3.1
the date on which
the modifications and renovations were
effected;
7.3.2
the person or
persons who effected the modifications and renovations;
7.3.3
the nature of the
modifications and renovations;
7.3.4
the
amount which the person or persons who effected the modifications
and renovations
charged;
7.3.5
a copy of the
invoice or statement of the person or persons who effected the
modifications and
renovations."
And
paragraph 9 of the applicant's request for further particulars reads
as follows:
"The
plaintiff requires
a
list
of all renovations which had to be performed to make the
property marketable.
"
Respondents'
submissions
[6] The
respondents' response to the request in paragraph 7 was that the
requested information is not
required or necessary for purposes of preparation for trial, as the
applicant's
claim
"is purely based on
a
projected
income basis, and the state of disrepair of the
property
is but
one
of the
factors taken
into
account
... in determining
the
fair
and reasonable purchase
consideration" .
[4]
I hasten to point out that, there is some level of contradiction
in
the
aforesaid
submission
or
statement,
as
the
respondents,
whilst
denying
the necessity of
the
particulars on
the
repairs, somewhat
admit
that same
is
necessary, but
as
one of many factors. I will
return to this. Further, the respondents submit that they had already
discovered
invoices
relating
to
the
repairs
and
renovations
effected
on
the
property.
The
same response was given with
regard to the applicant's request under
paragraph 9,
quoted above. The
applicant
brought this
application to
compel. The application was
heard on 16
February 2016
and
I
reserved this
judgment after
listening to
oral
argument by
Mr
HF Oosthuizen, on behalf
of
the
applicant
and
Mr
GV
Meijers
for
the
respondents.
[7] The
respondents bemoan the fact that, the applicant launched this
application without firstly affording them a courtesy of an
informal
notice. They state that the applicant ought to have indicated in what
respect he considered the furnished responses or
further particulars
insufficient. They consider this to be manifestation of lack of
collegiality on the applicant's part and the
cause of the incurring
of substantial costs in the matter.
[8] I
have already indicated above that, the respondents said that the
information or particulars required by the applicant are
not
necessary for the applicant to prepare for trial, as the applicant's
claims have no relevance to the required particulars.
They add that,
the absence of a counterclaim (from their side) based on costs of
maintenance, repairs, modifications and renovations
to the property,
is another reason why the information is not necessary for
preparation of trial. A proper request should have
related to income
generated by the property, they further submit. The highlight of the
respondents' submissions is that they have,
despite all these
reasons, already provided the applicant with all documents in their
possession relating to maintenance, repairs,
modifications and/or
renovations (hereinafter referred to collectively as the repairs) to
the property. Their attorneys forwarded
a letter dated 15 May 2015,
in terms of which, they informed the applicant's attorneys that there
are no further documents or details
beyond what has already been
provided. They conclude that with this being the situation, the
applicant should have not persisted
with the current application. I
will return to this below.
[9] Apart
from aspersions casted regarding the lack of collegiality mentioned
above, the respondents further submit that the application
is
harassment by the applicant, and ought to be visited upon by this
court with a punitive costs order on attorney and client scale,
no
matter the outcome of this application. They also consider the
applicant's conduct to constitute disregard of the rules of court
and
"sound practice". According to them the applicant may be
motivated by an ulterior motive in this regard. These are
also pinned
on the
fact that the applicant had brought this
application on short notice, when it was postponed on 18 May 2015
with costs reserved.
I will deal with the reserved costs issue,
together with costs of the application below. However, I just want to
mention that,
I do not see the need to deal with the submissions as
to what motivated the applicant to bring this application.
[10] On
the other hand the applicant submits that, the respondents' defences
do not hold, for various reasons. Chief, amongst them
is that, the
material dispute between the parties is regarding the fair and
reasonable market value of the property at the relevant
times. The
value would have been influenced by the condition of the property at
the material times and any repairs done to the
property have to be
taken into account. The repairs are significant to determining value
of the property. I agree with these submissions.
The repairs
constitute improvement to the property and once proven, serves to
defeat or reduce the applicant's claim that the property
was sold for
a lesser consideration, all other things remaining equal, I must add.
[11]
Further, the applicant contends that the respondents must bear in
mind that the purpose of further particulars for trial is
to prevent
surprises, by advising the other party of what is going to be proved
to enable him or her to prepare his or her case
accordingly in order
to meet the case to be presented or to combat any counter
allegations.
Applicable
legal principles
[12] The
applicable primary legal principle in this matter is Rule 21 of the
Uniform Rules of this court. It reads as follows in
the part I
consider critical current purposes:
"21
Further
particulars
(1)
...
(2)
After close of pleadings any party may, not less than twenty days
before
trial,
deliver a notice requesting
only
such further particulars as are strictly necessary to enable him
to prepare for trial."
[underlining
and bold ink added for emphasis]
[13] It
is said that in order to determine what kind of particulars fall
within the scope of
the
rule, once
has
to refer to the
pleadings.
[5]
Further, as submitted by the applicant, the
purpose of further particulars
has been found by our courts to be three-fold. Firstly, the process
is aimed primarily at preventing
surprises. At trial a•party is
required to be ready to
adduce
evidence to prove or disprove the material facts, and not to spring
up surprises on
opponents.
Secondly, the parties should be made aware with greater precision
what the other party is going to prove
in order to enable the opponent
to prepare
his
or her case and to combat any counter allegations. And thirdly, the
objective is not to tie the other party down and limit his
or her
case unfairly at the
trial.
[6]
[14] I
find it beyond argument that the requested particulars are strictly
necessary to enable the applicant to prepare for trial.
His claim is
based on the value of the property as it stood when the respondents
concluded the impugned sale agreement in terms
of which the second
respondent paid an amount of R650 000.00 for the property. The
applicant says this amount was substantially
less than the fair and
reasonable market value for the property. The
respondents
disagree with this and contended, at summary judgment that, the
property was significantly
improved
through
some
repairs
effected
and
that
the
current
condition
and
look
of the property does not
resemble what it was when the sale was concluded. How can they
ever consider
the
nature
and
extent
of these
alleged
repairs
to
be
unnecessary
for purposes
of
preparation
for the trial
to take
place
in this matter,
escapes me.
With the repairs
effected,
the
applicant's assertions as
to consideration paid being not fair and reasonable is advanced or
defeated.
Therefore,
the
furnishing
of
particulars in this
regard
is
strictly
necessary
to
enable
the
applicant
to
prepare
for
trial. The
applicant
has
convinced
me
on
this.
I will
proceed
to
make a finding that the
requested particulars be
furnished.
[15]
Be that
as it may,
the respondents
do not
appear to me to be
refusing
the
requested
information.
They in fact say they have furrnished all there is available to the
applicant. The only thing that stands out for me
here is that the
respondents do not appear to appreciate the full extent of the
submissions they made
in
the
summary judgment application in this regard.
What
was said there point to a drastic aesthetical improvement on the
property, which does not appear to be fully confirmed by the
documents furnished. It may well be that the respondents need to
explain, more or perhaps even better, their assertions made in
opposition to the summary judgment application. This has to be
unequivocal and before that is done
the requested particulars
are necessary for
purposes of preparation
for trial
in
this
matter.
Costs
[16]
There
are more
than
one
costs
orders
to
be
determined
in
this
matter.
On
18 May
2016
my brother Bofilatos
AJ,
made
two orders in terms of which costs were reserved.
The
third
order to be made will be for the application, which will follow the
outcome.
[17]
Regarding, the reserved costs order relating to the current
application (for compelling the furnishing of further particulars)
the respondents submit that the application was brought by the
applicant on a very urgent basis. The applicant served the
application
on 13 May 2015 and the matter was to be heard within
three court days later on 18 May 2015. The respondent, despite the
extremely
short notice, managed to file their answering affidavit, it
appears on 16 May 2015. The respondents argue that this was an abuse
of the court process. The applicant justifies his conduct by saying
he merely wanted to avoid delay in the matter due to postponement
of
the trial which was on 1 June 2015. The applicant further submits
that, he simply got the registrar to enrol the matter for
the date it
was already allocated in respect of the Rule 35(3) application. The
applicant's conduct, at face value may appear
unfair,
but the respondents have not shown any prejudice in this
regard which could be corrected through an appropriate
..
costs
order. The sitting of the court on 18 May 2015 was necessary to deal
with the costs element of that application (i.e. the
Rule 35(3)
application), which was still unresolved. Therefore, I will disallow
any wasted costs occasioned by the postponement
of this application
(to compel further particulars) on the 18 May 2015. Each party will
bear his or their own costs in this regard.
[18]
Regarding the Rule 35(3) application the reserved costs order is from
the set down of the matter onwards. The respondents argue
that costs
should only be allowed up to the set down of the matter on 13 May
2015.
It
is submitted
that parties had agreed at a pre-trial conference held before the
aforesaid date that the applicant will advise the
respondents if he
persists in the Rule 35(3) application.
It
is common cause that the applicant advised the respondents,
although he did not do so within the agreed deadlines or time frames.
But, the respondents, as well, appear not to have strictly acted
within the agreed time frames. They also bemoan that the applicant's
belated advice was not as prominent as was expected and they
consequently missed it.
In
my
view they only have themselves to blame in this regard. They should
have tendered costs, when they complied with the request
or to have
anticipated that it will remain the issue until it is dealt with.
Therefore they are liable for any consequential costs.
I will order
that they pay the costs of the Rule 35(3) application from the date
of set down onwards.
[19] As
indicated above, with success in this application, the applicant will
also be awarded costs of this application to compel
the furnishing of
further particulars. To avoid doubt these costs will exclude the
wasted costs occasioned by the postponement
of the matter on the
18
May 2015, in respect of which, parties are to bear their
own costs.
[20]
Therefore, I will make an order as follows:
(1) that,
the application is granted, and
(1.1)
the respondents are ordered to comply fully with paragraphs 7 and 9
of the applicant's request for further particulars,
a copy of
which is attached to the applicant's founding affidavit marked
Annexure "TKI ", by delivery of a their response
within
7(seven) days from date
hereof;
the respondents are ordered to pay
the costs of the application, excluding wasted costs
occasioned by the postponement
of the matter on the
18
May 2015. (2) that, the respondents are ordered to pay
the costs of the Rule 35(3) application from date of set down of
the
application onwards.
K.L.M. MANAMELA
Acting
Judge of the High Court
11
March
2016
Appearances:
For
the
Applicant:Adv
HF
Oosthuizen
Instructed
by Johannesburg:Richard
Meaden & Associates Inc,
c/o Rooth & Wessels
Inc,
Pretoria
For
the 1
st
and
2
nd
Respondents:Adv GV
Meijers
Instructed
by:Paul
Farinha
Attorneys, Johannesburg c/o Strydom Attorneys,
Pretoria
[1]
See
paragraph
12.1
of
the
respondents'
answering
affidavit
in
the
summary
judgment
application.
[2]
See
paragraph
12.2
of
the
respondents'
answering
affidavit
in
the
summary
judgment
application.
[3]
See
costs
order
by
Bofilatos
AJ
of
18
May
2015.
[4]
See paragraph 13
of the respondents' reply to the applicant's request for further
particulars (attached to
the
application to compel as annexure "TK2") on indexed page
22.
[5]
See
Hardy
v
Hardy
1961(1)
SA
643(W)
at
646D
onwards;
Swart
v
De
Beer
1989(3)
SA
622(E).
[6]
See
Van
Loggerenberg DE
Erasmus
Superior Court
Practice
vol
2, 2th ed (Juta Cape Town 2015) at Dl-252,
and
the authorities cited there.