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Citation
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Judgment date
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| August 2021 |
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31 August 2021 |
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Applicant’s request to amend notice and stay execution denied: procedural heading was mere form and stay requirements unmet.
Civil procedure – Amendment of notice of appeal – formal defects vs. substantive requirements of Form D; Stay of execution pending appeal – requirements: realistic prospect of success, imminent threat of execution, absence of unreasonable delay, substantial irreparable loss, and security for due performance; burden of proof on applicant.
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27 August 2021 |
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Review dismissed: no error apparent in refusal to refer constitutional question and interest discrepancy was a clerical, not reviewable, error.
Civil procedure – Review – scope limited to errors apparent on the face of the record – not a substitute for appeal. Constitutional procedure – Article 137(5)(b) – referral to Constitutional Court required only where interpretation of the Constitution is necessary and a prima facie conflict is shown. Execution – commitment of judgment debtor – allegations of unconstitutionality must prima facie raise an interpretative question to necessitate referral. Decrees – interest calculation – arithmetical/clerical mistakes are corrected under section 99, not by review.
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26 August 2021 |
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Application to set aside dismissal denied: applicant failed to show sufficient cause or diligence; conduct amounted to abuse of process.
Civil procedure – Order 9 r.23 CPR – setting aside dismissal for non-appearance – sufficient cause requires bona fides, diligence and absence of negligence; failure to prosecute and abuse of process may justify refusal to reinstate; prejudice to respondent and prolonged inaction relevant.
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25 August 2021 |
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24 August 2021 |
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24 August 2021 |
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24 August 2021 |
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24 August 2021 |
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24 August 2021 |
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24 August 2021 |
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24 August 2021 |
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Stay pending appeal dismissed for unreasonable delay, doubtful right of appeal, lack of security, and res judicata.
Civil procedure – Stay of execution pending appeal – Order 43 r.4 requirements: notice of appeal, likelihood of success, imminent execution, unreasonable delay, security for due performance; Appealability and leave to appeal; Res judicata and abuse of process; Money decree – reversibility and impecuniosity considerations.
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23 August 2021 |
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Court ordered access to respondent's premises for independent valuation of disputed works; costs in the main cause.
Civil Procedure – Section 98 CPA – court's inherent powers to make orders necessary for the ends of justice; entitlement to access premises for expert valuation where respondent frustrates inspection; application granted ex parte where respondent defaulted; costs of application ordered in main cause.
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19 August 2021 |
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19 August 2021 |
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Leave granted to join a contracted marketing agency as third party under Order 1 r.14 CPR based on an express contractual indemnity.
Civil procedure – Third party notice – Order 1 r.14 CPR – Joinder where defendant claims indemnity; contractual indemnity – express clause covering negligent or wilful acts; requirement that subject matter and original cause of action between defendant and third party be the same as between plaintiff and defendant; prejudice to plaintiff and interest of justice considered.
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19 August 2021 |
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Defendant misrepresented acting for a non-existent company, was personally liable for breach of the tenancy agreement and damages.
Company law — Pre‑incorporation contract — Person purporting to act for non-existent company may be personally liable (Companies Act s.54(1); Kelner v Baxter). Contract — Misrepresentation — False representation inducing agreement — remedy and liability. Contract — Breach — failure to pay rent and incomplete works leading to damages. Remedies — Special and general damages, interest and costs.
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19 August 2021 |
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Applicant found in contempt for failing to comply with consent judgment; ordered to pay principal, fine, interest and costs.
Insolvency/Statutory demand – consent judgment – award of compensatory interest at commercial rate – contempt of court for failure to comply with payment schedule – costs follow the event.
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19 August 2021 |
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19 August 2021 |
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16 August 2021 |
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Uncontroverted affidavit disclosing a bona fide set-off and triable issues warranted leave to appear and defend.
Civil procedure – Order 36 r.4 – leave to appear and defend – requirement to disclose bona fide triable issue or set-off/counterclaim. Set-off and counterclaim – may constitute a defence to summary suit where facts disclosed and not controverted. Affidavit capacity – deponent must ordinarily disclose status to depose for a company, but failure to object may leave affidavit to stand. Summary judgment principles – court to distinguish fact-specific authorities and may grant leave where defence is bona fide.
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16 August 2021 |
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An ex parte Anton Piller order was properly granted and extended; counsel-deposed rebuttal affidavit struck out under Regulation 9.
Trade marks – interim Anton Piller orders – ex parte relief – scope and review of Anton Piller orders; Procedural law – admissibility of supplementary and rebuttal affidavits; Professional conduct – advocate as witness (Regulation 9) – affidavit struck out; Lis pendens/abuse of process – requirement for separate application and pleading.
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12 August 2021 |
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10 August 2021 |
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Consent judgment binds parties; garnishee order corrected for nondisclosure of post-judgment payments.
Execution—garnishee proceedings; consent judgment—binding effect and estoppel; post-judgment payments—applied to decretal sum; interest—not recoverable absent contractual or court order; correction of clerical/accidental errors—section 99 Civil Procedure Act; approbate and reprobate principle.
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6 August 2021 |
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Buyer who examined sealed goods cannot reject for latent defects caused by storage; trial court’s breach finding overturned.
Sale of Goods — implied conditions as to fitness and merchantable quality — buyer’s examination and acceptance — exception where defects would have been revealed by examination — misrepresentation — appellate re-evaluation of evidence.
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2 August 2021 |
