Appeal, out of time, against order of a Master made on 2 June 2014, dismissing the appellant’s application to set aside a consent judgment entered in favour of the respondent, on 29 November 2013 - the parties agreed to compromise the subject action on terms that the appellant pay the sum of $51,000 to the respondent by instalments - further term that appellant provide a duly executed notice of consent for the sum of $87,822.13 to be held in escrow ('the higher sum') - in event of breach by the appellant, the respondent entitled to enter judgment for the higher sum - the said notice to consent executed by the appellant's solicitor - appellant defaulted in payment of instalments - judgment formally entered upon the filing of the notice for the higher sum of $87,822.13 - whether judgment regularly obtained – whether there was a concluded and enforceable agreement to settle – question as to the authority of the solicitor for the appellant to compromise the subject claim – whether parties not bound until the execution of a Deed – whether the judgment sum based upon a term of the agreement which was void as a penalty – the appellant did not attend at hearing of the appellant’s own application – the Master proceeded in absence of the appellant.
Held: The right of appeal is circumscribed by Rule 6 DCR 286. The consent judgment was regularly obtained by the respondent. An immediately binding agreement to compromise the subject action as between the appellant and the respondent entered into no later than 30 October 2013 by exchange of correspondence. Agreement not subject to execution of a Deed. The agreement not void as a penalty. The Master correctly determined that the applicant had no arguable defence on the merits to the respondent’s claim. Appeal dismissed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Lovrinov v Jusufovic [2014] SADC 203
Case
[2014] SADC 203
Decision Date
CaseChat Overview and Summary
In the matter of Lovrinov v Jusufovic, the court was called upon to determine the validity of an appeal against an order made by a Master on 2 June 2014, which dismissed the appellant’s application to set aside a consent judgment entered in favour of the respondent on 29 November 2013. The underlying dispute involved the terms of a compromise agreement whereby the appellant was to pay the respondent a sum of $51,000 by instalments. Additionally, the agreement contained a term that the appellant would provide a duly executed notice of consent for an escrow holding of $87,822.13. In the event of a breach by the appellant, the respondent was entitled to enter judgment for the higher sum. The appellant’s solicitor executed the notice to consent, but the appellant defaulted on the agreed payments, leading to the entry of judgment for the higher sum.
The legal issues before the court were multifaceted. Firstly, the court had to determine whether the judgment was obtained regularly. Secondly, it needed to establish if there was a concluded and enforceable agreement to settle the dispute. Thirdly, the court had to consider the authority of the appellant’s solicitor to compromise the claim on behalf of the appellant. A further issue was whether the parties were only bound by the agreement upon the execution of a formal deed. Lastly, the court had to examine whether the judgment sum was based on a term of the agreement that was void as a penalty. Notably, the appellant did not attend the hearing of their own application, and the Master proceeded in their absence.
The court found that the appellant’s appeal was out of time and that the Master had correctly dismissed the application to set aside the consent judgment. The court held that the agreement was enforceable and that the solicitor had the authority to act on behalf of the appellant in executing the notice of consent. The court determined that the terms of the agreement were not void as a penalty and that the higher sum was a legitimate part of the compromise agreement. Consequently, the appeal was dismissed, and the consent judgment remained in place.