Down touch investments pty ltd

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Down Touch Investments (Pty) Ltd v Matjhabeng Local Municipality and Another (1172/2016) [2016] ZAFSHC 68 (29 March 2016)

For complaints, use another form. Study lib. Upload document Create flashcards. Documents Last activity. Flashcards Last activity. Add to Add to collection s Add to saved. Furthermore the application of the principle of fundamental breach was also questioned.

As such the pertinent principles in articles 74 and 75 as well as articles 63 and 64 1 of the CISG were considered. From the outset two observations can be. The remainder were only relevant in domestic matters. Secondly towards the end of the original trial the procedural law changed in Queensland. Arguably the judge should and could have advised the parties as soon as the change became apparent to amend their pleadings or simply call for a new trial.

The change of the Rules entered into force after the trial commenced but before it finished. Of particular interest in this case is not the judgment itself but the arguments of counsel for the appellant as well as the respondent.

The arguments displayed a lack of understanding of the CISG and its implications. This was an opportunity and an invitation to consider the CISG properly and unfortunately the challenge was not taken up. First if the pleading was based on the Sale of Goods Act then the appellant ought to have urged the court to ask the plaintiff to redraw its claims.

Instead the appellant argues estoppel, The question down touch investments pty ltd course is since when can a respondent be estopped from pleading the appropriate law? It should have been abundantly clear at least at the appeal stage that the CISG is the governing law to the exclusion of the Sale of Goods Act. The appellant is correct in suggesting that the trial judge erred by deciding the case on a different basis as from those disclosed by the pleadings.

However the appeal should have been made on grounds of denial of justice, which arguably were considered in allowing this appeal and not on grounds of an application of the wrong law. The effect as mentioned above should have been that the pleadings are to be redrawn or the matter is listed. However the appellant does not have this outcome in mind.

There is indeed injustice if any party would be estopped form pleading the proper and only applicable law. The argument that the trial judge failed to give proper regard to article 63 when determining whether a fundament breach occurred is a valid though weak point.

The point is that article 63 is discretionary in character and does not need to be invoked. If the plaintiff believes that a fundamental breach has occurred, and the court accepts that argument, article 63 does not need to be relied on.

Even a cursory investigation of academic writing on this point would have clarified this matter. The most interesting argument is that the appellant contended that articles 75 and 74 were wrongly applied. In relation to article 75 it was contended that the purpose of this article only involves the resale of goods which were the subject of the contract and not any other goods. This appears to be a novel approach in interpreting article 75 and more to the point no case law or academic writing was offered in support of such a contention.

Indeed one would be hard pressed to find any interpretation of article 75 to support such a contention. Again as noted previously article 7 of the CISG specifically noted that regard has to be had to the international character of the convention.

This has been interpreted as meaning that recourse to domestic law is not allowed. It is a hallmark of this case that both counsel have not taken note of article 7 otherwise arguments such as the above would not have been contemplated. It is obvious that article 75 and 76 are to be consulted in this instance as the respondent claimed fundamental breach. Equally well it should have been understood that the respondent has not lost any additional rights under article 74 by relying down touch investments pty ltd either article 75 and The wording of article 74 as well as academic writing and jurisprudence makes it abundantly clear that article 74 cannot be used to enrich the plaintiff.

It can be used to claim those damages which are not recoverable under article 75 and Also if counsel would have understood the ramifications of article 7 then a statement that article 74 reflects the common law as stated in Hadley v Baxendale 9 Ex. It is ironic that the only case which was relied upon is noted by many scholars as an example where the court could not overcome its ethnocentric interests. Kritzer in his editorial noted specific instances and one note is sufficient to illustrate the problems.

The Courts Decision From a practical point of view the CISG will apply whatsoever and absent the delayed introduction of the CISG by Ambrose J in the original trial none of the arguments would amount to any meaningful justification of an appeal Also it appears that the way this matter has been argued the lessons from the original judgment have not been learned.

It is not surprising that the court rejected the appeal. The court did look at the appropriate facts in deciding the relevance of article 63 and noted that it was not relevant as the appellant was already in fundamental breach. Unfortunately the court did not explain the relationship between articles 64 and 25 to come their conclusion. The problem again is that the court also did justify their reasoning by reverting to domestic jurisprudence and equated a fundamental breach with a rescission of the contract.

Arguably it could be that the outcome of a repudiation may arrive at the same result as an application of fundamental breach under the CISG. However to argue that the outcomes are the same therefore the concept must be the same is not correct.

The treatment of fundamental breach is unique. Related documents. Decision No. Change of circumstances in international instruments of contract law.

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Jentozac Investments Pty. Ltd.

Our road building management team understands the specific requirements of road construction. As it was dissatisfied with the outcome, a request for formal reasons was addressed to the first respondent. Through the years, Inbestments Touch has expanded its areas of investmebts. It is neither prudent nor necessary to define ‘clearest of cases’. As the applicant would have been the lowest in price of all the bidders that advanced to the last stage of evaluation, it would have obtained the highest points and down touch investments pty ltd to have been awarded the contract. To contend that the same principle would not have been applied to the applicant is implausible and in any event not supported by any facts or evidence. These plants produce asphalt for other contractors as well as our teams. To strive to be a company of quality people who are provided with excellent opportunities to personally grow and prosper. We put new business prospect leads within your reach.