Www persianv

15.11.2017 1 Comments

These would be the costs of the 2nd, 13th and 28th March I am also of the view that the applicant delayed in launching the proceedings in this application and that the urgency was what is often termed self-created. Having regard to the history of the litigation between the parties and more specifically the grounds advanced by the applicant in this application for the setting aside of the auction sale and the self created urgency, I am of the view that in the exercise of my discretion the applicant ought to bear the costs occasioned by the application specifically those of the second, third and fourth respondents. That the relief set forth in 2. An auction sale was conducted which was subsequently set aside after several interlocutory applications and interim interdicts. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. The applicant made a written offer to purchase the property for R15 million but such offer was rejected on the basis that the property was sold at the fall of the hammer.

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Consequently, the applicant contends that in light of the fact that the clauses relating to further offers and the sellers confirming the sale was not included in the conditions of sale, there was a material deviation from the court order which vitiates the sale. The applicant has not satisfied the requirements either for a declaratory order or for an interim interdict. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. He was aware as at 10 January , of the new conditions of sale. An explanatory affidavit was filed by the first respondent in response to the allegations of the applicant. Having regard to the history of the litigation between the parties and more specifically the grounds advanced by the applicant in this application for the setting aside of the auction sale and the self created urgency, I am of the view that in the exercise of my discretion the applicant ought to bear the costs occasioned by the application specifically those of the second, third and fourth respondents. This entails the auction sale and conditions complying with the provisions of the Consumer Protection Act and the regulations thereto at the time of the auction. The applicant is directed to pay the first to fourth respondents costs occasioned by the application, such costs are to include the costs consequent upon the employment of two counsel where applicable. That the relief set forth in 2. He goes on to explain that there is no such thing as standard terms and conditions applicable to auctions as there are various types of auctions each requiring their own terms and conditions. In addition they are available for inspection and are read out prior to the auction sale. In addition the first respondent alludes to the history of litigation between the parties and avers that he was entitled to amend the conditions of sale to bring them in line with the usual practice relating to the conduct of such forced auction sales. Section 45 4 b and 45 5 provides that notice must be given in advance that the auction is subject to a right to bid by the owner or auctioneer. The applicant is aware of the changes to the conditions of sale on 10 January , engaged with the first respondent, through correspondence yet did nothing about these changes. The first and fourth respondents submit that the applicant has not established the requirements for an interdict. Wyles states that he was contacted for the first time regarding the affidavit on the morning of 1 December and he was requested to sign the affidavit as a matter of urgency, and annex a copy of the standard terms and conditions used in auction sales. Consequently, the application must fail as the interpretation contended for by the applicant cannot be sustained. The second and third respondents submit that what was contemplated by the order was that the auction sale would be conducted in terms of the usual practice of the auctioneer set out in its standard terms and a condition prevailing at the time the auction was conducted. He engaged with the first respondent but did not seek to set aside the amended conditions. The application is dismissed. I am of the view that to grant a costs order to the first respondent, would give the impression that courts condone this type of exchange. Having regard to the affidavits filed, the issues for determination as raised by the parties are the following: I say so for the following reasons. Nature of the Applications In the matter under case no. An auction sale was conducted which was subsequently set aside after several interlocutory applications and interim interdicts.

Www persianv


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