- November 11, 2022
- |Concise Law Reports (CLR), Contracts
CONTRACTS – URGENT APPLICATION – REQUIRMENT OF SUBSTANTIAL REDRESS
Reasons for Orders: Practice Directive 61
Whereas the Court struck from the roll, with costs, an urgent application brought by the applicant, the reasons for the orders were as follows, per COLEMAN J:
Applicant brought an urgent application in which it sought specific performance of a breach clause in a rental agreement in respect of construction equipment. The applicant alleged that the first respondent was in breach of the rental agreement by being in areas on payment and wanted the equipment to be returned on an urgent basis. In the meantime, the applicant alleged that the first respondent ceded its rights in some equipment to second respondent and sold others to third respondent. The first respondent disputed the claim and insisted that the equipment in question were all in its possession.
[1] …….In my view all this raise substantial disputes of fact.
[2] First respondent also raised the point that applicant did not comply with the requirements of rule 73 of the rules of the High Court. In particular, first respondent contended that applicant did not explicitly set out the reasons why it could not be afforded substantial redress in due course. This is a peremptory requirement.
[3] The construction equipment in contention will certainly not disappear from the face of the earth. The fact that they will deteriorate in value is inevitable and will happen anyway. I agree with first respondent that applicant did not make out a case for urgency in this matter. It appears to be quite common in urgent applications in this jurisdiction that an applicant either under-estimate the importance of substantial redress in due course as a requirement for urgency, or entirely misses it.
[4] Substantial redress in due course does not only relate to damages as an ultimate remedy. It involves whether or not the applicant can achieve substantially the same result in the normal course as it is trying to achieve on an urgent basis.
Rentworks Namibia (Pty) Limited v Octagon Construction (Pty) Limited NAHCMD 11 November 2022