Jenkinson v Young No. DCCIV-98-1344

Jenkinson & Anor v Young
[2004] SADC 30

Judge Herriman
Civil

INTRODUCTION

1. The plaintiffs sue for damages for breach of a joint venture contract which comprised a series of three contracts allegedly concluded with the defendant between 1994 and 1996.

2. They say these contracts in turn related to their joint occupancy of retail shop premises owned by the defendant at 152 Magill Road, Norwood (“152 Magill”) and of adjoining leased workshop/warehouse premises at 146B Magill Road, Norwood (“146B Magill” or “the workshop” or “the warehouse”), and their joint engagement of a sales person to work at 152 Magill.

3. They say that the agreed period of the joint venture was nine years commencing from March 1995; alternatively, that the period was determined by the terms of what amounted to a statutory retail shop lease over 152 Magill, namely, a period of five years from 2 December 1996. 

4. They allege the defendant breached the terms of the joint venture, however construed, by wrongfully giving notice to the plaintiffs to quit 152 Magill on 7 February 1998 and that by his continuing conduct he repudiated that venture.  Ultimately, on 10 June of that year, the plaintiffs say, they accepted that repudiation.

5. In consequence, they contend, they suffered substantial losses in and about the relocation of their retail business, ongoing trading losses resulting from an inability to secure premises for an equivalent rental in an equally suitable location, dislocation expenses, in terms of higher operating costs resulting from the separation of retail and workshop activities, and the loss of use of the funds expended in mitigating their losses.

6. For his part, the defendant agrees there was a joint venture between them, but denies it was for a fixed term, whether by agreement or statute, and says it was terminable at will, that it was with the first plaintiff, Jenkinson, only, that it involved sharing of the shop premises and workshop/warehouse (albeit not on the same terms as alleged by the plaintiffs), that it did not include sharing the cost of employing a sales assistant, but did include terms ensuring Jenkinson brought to 146B Magill and made available to him and his son Damian (“Damian”), from the outset and on particular terms, Jenkinson’s machinery, stock and woodworking expertise. He says that, whether at will or otherwise by reason of Jenkinson’s failure to adhere to those terms, he became entitled to lawfully terminate the venture on 7 February 1998 and that he did so. Specifically, he denies the plaintiffs’ alternative contention that their agreement over the joint occupation of the retail shop at 152 Magill led to the creation of a five‑year retail shop lease within the meaning of the Retail and Commercial Leases Act 1995.

7. Finally, he disputes the plaintiffs’ damages claim.  He originally asserted a substantial counterclaim for losses he said arose out of the plaintiffs’ breaches of the joint venture agreement, but at trial, he abandoned part of it and the remainder stood or fell according to the success of the plaintiffs’ claim.