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[2008] ZAWCHC 311
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Borman and Hay Ward Inc v Meridian Bay Restaurant (Pty) Ltd (16884/2008) [2008] ZAWCHC 311 (3 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
16884/2008
DATE
:
3 DECEMBER 2008
In
the matter between:
BORMAN
AND HAY WARD INC
APPLICANT
versus
MERIDIAN
BAY RESTAURANT
(PTY)
LIMITED
RESPONDENT
JUDGMENT
(Application
for Leave to Appeal)
DAVIS,
J
:
This
is an application for leave to appeal against a judgment of this
Court which granted summary judgment in favour of plaintiff
(respondent in these proceedings).
I
do not intend to traverse the details of the case which are set out
in the principal judgment. Suffice it to say, the essence
of the
dispute turns on whether the defendant (appellant) in these
proceedings) has raised, on affidavit, a statement of material
facts
which would be sufficient to persuade a Court that, if proved
atra
at
trial, this would constitute a defence to plaintiff's claim. See the
classic statement of this approach in
Breitenbach
v Fiat (S.A.1 (Edms ) Bpk
,
1976(2) SA226 (T). In this case the defence, to the extent that one
is put up in the affidavit by defendant, is that, highlighted
by
Mr
Van Reenen
,
who represented the defendant (appellant in these proceedings),
nameEy that the>
"Defendant
never signed a fee mandate with the plaintiff in terms whereof a fee
structure was determined. Under the circumstances,
I am of the
opinion that applicant is entitled to a reasonable costs, which
costs is (sic) to be taxed in accordance with the
rules of the High
Court and also based on the tariffs determined by the rules of the
High Court.â
It
is correct that summary judgment is a fatrfy drastic measure and
that, as
Mr
Van Reenen
submitted, court's do not parse through the affidavit of a defendant
such as in this case with the kind of scrutiny that they
would in
dealing with matters of an application. But the test is clear.
As
I noted in the principle judgment, there is no dispute, if all the
papers are read as a whole. The defendant engaged the
services of
the plaintiff, significant costs were incurred, pursuant to such
engagement, and plaintiff is entitled to be so paid.
Clearly
there was a dispute as to the quantum that then necessitated
recourse to the taxing master. It is correct, as
Mr
Van Reenen
submits, that a taxing master cannot determine whether the attorney
acted with or without a mandate. These are matters clearly
which
fall beyond the competence of a taxing master. See
Berman
and Fialkov v Lumb
,
2003(2) SA 674 (C) at para 22.
But
this is not a case in which there is a dispute about an engagement
of services. This is a dispute as to the quantum flowing
from the
engagement of an attorney. The defendant, having i*quested the
taxing master to become involved, now makes the further
averment
that the taxing master was obliged to tax at the High Court tariff
There is no basis in the affidavit to even sustain
that averment, or
even to suggest that this averment has any basis in reality. Once
this issue is dispose of, there is nothing
left to analyse so as to
justify the basis of a defence, sufficient to ensure that summary
judgment should be refused. In my
view, there is no basis by which
another Court would come to a conclusion different to that of this
Court and accordingly the
application for leave to appeal is
DISMISSED
WITH COSTS
DAVIS,
J