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[2013] ZAGPPHC 31
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Pankhurst v Fitzgerald (47605/2009) [2013] ZAGPPHC 31 (7 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
Case
Number: 47605/2009
Date:
7 February 2013
In
the matter between:
JOHN
RONALD
PANKHURST
...................................................................................
PLAINTIFF
and
PATRICK
FITZGERALD
…...........................................................................................
DEFENDANT
JUDGMENT
K
E MATOJANE J
Introduction
[1]
This is an action for payment of contractual, alternatively delictual
damages allegedly suffered by the plaintiff.
[2]
On or about the 23 October 2007 the
plaintiff entered into a written building agreement with Fitzcon
Development Trust , duly represented
by the defendant, in terms
whereof the Fitzcon Development Trust undertook to construct a
dwelling and outbuildings on stand 729
Midstream for the plaintiff
for a total price Of R1 878 000.00.
[3]
The written building agreement was on
the letterhead of Fitzgerald Properties & Building (Pty) Ltd.
[4]
During the construction of the dwellling
and from time to time the plaintiff paid progress payments into the
bank account of Fitzgerald
Property Developers (Pty) Ltd held with
ABSA Bank Ltd. The plaintiff was then requested in future to pay
progress payments into
the personal account of the defendant.
[5]
The plaintiff's case as pleaded is that
the defendant negligently, alternatively, purported to represent, or
contract on behalf
of a nonexistent trust or other entities which
were no more than his alter ego.
[6]
In paragraph 9 of its Particulars of
Claim the plaintiff alleges that by virtue of the non existence of
the trust, an oral express
alternatively an implied or tacit
agreement was concluded between the plaintiff and the defendant
personally on the following dates
and in the following terms:
"9.1
On or about 6 May 2008 to the effect that the defendant would put the
sum of R50 000.00 paid by the plaintiff to the defendant
on or about
that date to use in respect of project management fees that had
validly been earned or that were validly to be earned;
9.2
On or about 8 May 2008 to the effect
that the defendant would put the sum of R50 000.00 paid by the
plaintiff to the defendant on
or about that date to use in respect of
a deposit for kitchen cupboards;
9.3
On or about 23 May 2008 to the effect
that the defendant would put the sum of R50 000.00 paid by the
plaintiff to the defendant
on or about that date to use in respect of
tiles for the dwelling and/or outbuilding;
9.4
On or about 26 May 2008 to the effect
that the defendant would put R25 000.00 of the sum of R35 000.00 paid
by the plaintiff to
the defendant on or about that date to use in
respect of a fire place, and R10 000.00 of the sum of R35 000.00 paid
by the plaintiff
to the defendant on or about that date to use in
respect of a deposit for a swimming pool; and
9.5
On or about 26 May 2008 to the effect
that the defendant would put R20 000 of the sum of R50 000.00 paid by
the plaintiff to the
defendant on or about that date to use in
respect of bedroom cupboards, and R30 000.00 of the sum of R50 000.00
paid by the plaintiff
to the defendant on or about that date to use
in respect of sanitary ware”.
[7]
The plaintiff's case as pleaded is that
the above payments were appropriated by the defendant and put to his
own personal use or
to use other than what the defendant had alleged
them to be due for and has thereby breached the said oral agreements.
The defendants
case on the other hand is that he acted as a trustee
for the trust when receiving and utilizing the money and denies that
he undertook
to utilize the monies for the reasons set out by the
plaintiff. The defendant specifically denies the oral express
alternatively
implied further alternatively tacit agreements as
alleged by the plaintiff.
[8]
The plaintiff testified that he entered
into a building contract with the Fitzcon Development Trust and that
he dealt with the defendant
throughout the duration of the
construction work until the plaintiff sent a fax on the 26 November
2008 cancelling the agreement
with the Trust. He testified that he
was satisfied with the payments and expenses as recorded by the Trust
up until 6 May 2008.
The accounting document by the trust records the
payments and expenses up to the 27 July 2008 and the contract was
cancelled on
the 26 November 2008. The plaintiff conceded under cross
examination that all the payments between the 6 May and the 27 May
form
part of the building contract entered into between himself and
the trust represented by the defendant.
[9]
At no stage in his evidence in chief did
plaintiff testify that the trust did not exist nor that he was no
longer bound by the terms
of the contract he entered into with the
trust. Under cross examination, the plaintiff testified that he did
not know whether the
trust existed or not, this cannot be reconciled
with his testimony that he does not dispute the account that the
trust has prepared
except for entries relating to Erf 1100 and Sammy
Ceilings.
[10]
It is clear from the original deed of
trust and the letter of authority presented by the master of the High
Court under subpoena,
that the defendant is one of the trustees of
the trust and that the trust exists. This disposes of the basis upon
which the alleged
tacit contracts came into being and the contention
that the contracts were breached. It is also clear from the evidence
of the
plaintiff that the building contract between himself and the
trust was always applicable and that all payments between 6 May and
27 July 2008 except for entries relating to Erf 1100 and Sammy
Ceilings formed part of the building contract. According to the
plaintiff's letter dated the 19 November 2008, the development was
68% complete.
[11]
Having found that the building contract
between the plaintiff and the trust was in place when the alleged
tacit contracts were entered
into, the case must turn upon the terms
of the building contract with the trust.
Clause
4.2 of the building contract provides as follows :
"Payment
to the contractor from a building loan by the owner shall occur
according to the normal schedules and procedures of
the relevant
financial institution. The owner agrees that all payments by the
financial institution will be made with the procedures
prescribed by
the financial institution. This means in general that all payments by
the financing institution are ceded to the
contractor in lieu of
construction in accordance with this agreement, any applicable
addendums, and appendix 'A'”.
[12]
"Clause 4.3 provides:
"A
final, consolidated account statement shall be presented by the
contractor to the owner prior to the date of occupation,
reflecting
all costs and payments. The owner undertakes to settle the
outstanding balance, if any prior to the date of occupation
and
agrees that he /she has no right to occupation until such outstanding
amounts have been paid. If, for whatever reason, the
constructed
building is occupied before the final account has been paid, the
owner acknowledges that he/she is responsible for
the immediate
payment of the balance once brought to his attention by the
contractor".
[13]
Clause 8.1 provides:
"This
agreement and all duly signed addendums to it constitutes the entire
contract between the owner and the contractor. Verbal
agreement do
not form part of this contract, neither do they amend this contract
and no amendment will be considered valid unless
it is documented and
signed by both parties".
[14]
I agree with defendant's counsel that a
tacit term or a tacit contract cannot come into being if is in
conflict with the express
provisions of a contract. The building
contract in the annexure, makes express provision for project
management fees, kitchen cupboards,
tiles for the dwelling fire place
and swimming pool, all these items are subject matters in the alleged
five separate tacit contracts
and without a written variation of the
main agreement in terms of clause 8 the oral agreements cannot come
into being. See Alfred
McAlphine & Son (Pty) Ltd v Transvaal
Provincial Administration 1974(3)SA 506(A) at 531 - 537.
[15]
The plaintiff's counsel argued that the
fact that defendant conceded that he never paid the R50 000.00 in
respect of project management
fees to the Fitzgerald Development
Trust is proof that defendant appropriated for himself all the
project management fees and did
not pay it towards the validly earned
contractors fees as he undertook to do. Counsel further argued that
the defendant cannot
say that the monies that defendant personally
paid to the contractors was put to the plaintiffs use as it was
Fitzcon Development
Trust that was responsible for payment of
contractors. Counsel submitted that no factual or legal basis was
pleaded as to why such
payments could be set off against monies that
the defendant owes the plaintiff.
[16]
I do not agree with this semantic
analysis. It is self-evident that the defendant acted throughout in
his capacity as a trustee
of the trust when he received and utilized
the monies. The trust accounted to the plaintiff for the payments
received pursuant
to the trustee's arrangement, which was accepted by
the plaintiff, as to how and whereto payment should be effected.
Accordingly,
the monies were not appropriated by the defendant for
personal use as alleged and there is no breach of the tacit contracts
as
the contracts never came into being.
[17]
The plaintiff has also not shown that
his patrimony was diminished by defendant's fraudulent
misrepresentation as none was shown
and the parties have not debated
the account for the work done. See Trotman v Edwick T951(l) SA 443
(A). In my view, the plaintiff
has failed to show that there is
anything wrongful or unlawful in any of the defendant's conduct and
in the result the plaintiff's
claim must fail.
[18]
Defendant has requested costs as between
attorney and client including the costs of two counsel and of the
qualifying reservation
and attendance fees of the defendant's expert
witness. In my view, such costs are not justified as the matter is
not out of the
ordinary justifying the employment of two counsel and
an expert.
[19]
In the result, the following order is made:
The
plaintiff's claim is dismissed with costs.
K
E MATOJANE
JUDGE
OF THE HIGH COURT