[53] Mr Muller pointed out that there is no entity or firm called “Prestige Properties” and that the plaintiff therefore did not prove that the agreement was concluded with Schmidt trading as Prestige I agree with this submission, but “Harold Properties.” the effect is not fatal. The evidence shows that Mr Schmidt was the contracting party. In either case the liability remains that of Mr Schmidt personally. [54] It follows from the above that the defence on this question is defendant’s rejected. Should the Court hold that the correct party is sued, does the defendant’s plea disclose a defence? [55] During argument counsel referred to paragraph 3.1 of the plaintiff’s defendant’s plea in which he denies that the parties entered into agreement that the plaintiff would render architectural services to the defendant. In amplification of this denial the defendant pleads that the agreement was with City Park Properties and not with the defendant. Having thereafter set out certain terms of the agreement, the defendant then pleads that City Park Properties CC duly complied with its obligations under the contract, but that the plaintiff failed to meet its obligations under the contract. Counsel pointed out that the defendant did not make the averment that, in the alternative, should the correct party be cited the plaintiff would in any event not be entitled to payment because it has not performed its obligations. Counsel submitted that this failure would be fatal for the defendant in the event that the Court finds that the plaintiff sued the correct party (as the Court has indeed now found), because the defendant did not raise a defence in respect of this aspect. [56] It is trite that the pleadings must be construed as a whole. Even if the plea might not be a model of clarity, it can be seen when read with the allegation in paragraph 3.3 that amount being claimed by Plaintiff is not due and that the “the payable” intention of the pleader is to convey that the plaintiff did not fulfil its obligations in any event, regardless of which party is sued. This is also the basis on which the case was fought, as Mr Muller submitted. In the circumstances the contention plaintiff’s should not be upheld. Did the plaintiff perform its obligations under the contract, alternatively should it be awarded a reduced fee?
[53] Mr Muller pointed out that there is no entity or firm called “Prestige Properties” and that the plaintiff therefore did not prove that the agreement was concluded with “Harold Schmidt trading as Prestige Properties.” I agree with this submission, but the effect is not fatal. The evidence shows that Mr Schmidt was the contracting party. In either case the liability remains that of Mr Schmidt personally. [54] It follows from the above that the defendant’s defence on this question is rejected. Should the Court hold that the correct party is sued, does the defendant’s plea disclose a defence? [55] During argument plaintiff’s counsel referred to paragraph 3.1 of the defendant’s plea in which he denies that the parties entered into agreement that the plaintiff would render architectural services to the defendant. In amplification of this denial the defendant pleads that the agreement was with City Park Properties and not with the defendant. Having thereafter set out certain terms of the agreement, the defendant then pleads that City Park Properties CC duly complied with its obligations under the contract, but that the plaintiff failed to meet its obligations under the contract. Counsel pointed out that the defendant did not make the averment that, in the alternative, should the correct party be cited the plaintiff would in any event not be entitled to payment because it has not performed its obligations. Counsel submitted that this failure would be fatal for the defendant in the event that the Court finds that the plaintiff sued the correct party (as the Court has indeed now found), because the defendant did not raise a defence in respect of this aspect. [56] It is trite that the pleadings must be construed as a whole. Even if the plea might not be a model of clarity, it can be seen when read with the allegation in paragraph 3.3 that “the amount being claimed by Plaintiff is not due and payable” that the intention of the pleader is to convey that the plaintiff did not fulfil its obligations in any event, regardless of which party is sued. This is also the basis on which the case was fought, as Mr Muller submitted. In the circumstances the plaintiff’s contention should not be upheld. Did the plaintiff perform its obligations under the contract, alternatively should it be awarded a reduced fee?
Pierre%20Smith%20Architects%20CC%20v%20Schmidt%20(I%20920-2003)%20[2014]%20NAHCMD%2092%20(20%20March%202014).docx