IN
THE HIGH COURT OF SWAZILAND
JAMES
ROBERT GALLOWAY N.O. Applicant
vs
PROTON
TRADING (PTY) LTD Respondent
Case
No. 920/96
Coram
S.W. Sapire
For
Plaintiff Adv. Kades
For
Respondent Adv. Fine
JUDGMENT
(8/10/97)
This
was an application made by James Robert Galloway in his capacity as
the provisional liquidator of BAC Food Distributors (Proprietary)
Limited. The applicant was appointed to his office by the Master of
the Supreme Court Transvaal Provincial Division as the company is a
South African Company.
In
his application the applicant sought the provisional liquidation of
the respondent.
The
matter first came before the Court on 16th April, 1996 when it was
postponed to the 18th April and the respondent was given up until
17th April to file an Affidavit. It was further ordered that pending
the hearing of the matter the respondent was to be interdicted from
disposing off or alienating any of its assets.
After
the Court hearing on the 16th of April the applicant went to the
premises of the respondent to investigate what stocks were in fact
held by the respondent. The respondent and its representatives did
not arrive at the premises until sometime later and it was discovered
that there were in fact no stocks at all.
Following
on the filing of the affidavit by the respondent the matter was once
again
2
heard
on the 18th of April when the application was dismissed and costs
reserved. The parties were given permission to file affidavits as
they may consider necessary and to set the matter down for an order
as to costs. The matter then reappeared on the role 19th July when it
was postponed by consent.
Finally
on the 19th September the matter was again placed on the roll. Both
parties had filed affidavits concerning matters which they thought
relevant to the question as to who should pay the costs of the
abortive application.
The
normal rule is of course that the successful party in Court
proceedings is entitled to his costs. It was suggested by the
applicant, i.e. Galloway, that notwithstanding the fact he was
constrained to abandon the application, he should, because of the
conduct of the respondent who set out the affidavit, not be obliged
to pay the costs.
I
have carefully considered the matters raised by him in the affidavit
and the replies thereto by the respondent and have come to the
conclusion that there is no reason why the usual order following on
the dismissal of the application or its failure should not follow in
this case.
Nothing
has been shown which could remotely be considered as an invitation by
the respondent for an application of this nature. It also seems to me
that the applicant was precipitate in making this application. This
is because the demand was sent on one day and the following day or
shortly thereafter the application was made.
On
the papers as they stood the applicant did not make out a case for
relief sought.
The
respondent on the other hand seeks a special order as to costs and
asks that the costs be paid by the applicant on the scale appropriate
to attorney and client This is an extraordinary order made only
in special circumstances and is not appropriate where the only
offence is the bringing of what turns out to be an insupportable
case. It seems that the applicant in good faith had reason to believe
that the application of this nature was necessary in the
administration by him of the company of which he is now the
provisional liquidator. I do not see any malpractice in bringing of
the application notwithstanding that it has failed.
3
In
the circumstances I order that the applicant for liquidation pay the
respondent's costs following on the dismissal of the application.
S.W.
SAPIRE
ACTING
CHIEF JUSTICE
