The Port Elizabeth High Court has dismissed an application brought by Irish businessman Ken Denton's Ummi Properties for summary judgment against Brazilia Fusion Restaurant to evict it because its rental was not paid.
Judge Richard Brooks dismissed the application for eviction of the Brazilian Fusion Restaurant by Ummi Properties and has given the eatery the right to defend its action in court. Image:
TravelAgentCentralThe restaurant, located at Unit 12 of the Humeway Shopping Centre, defended the action.
According to the judgment, Ummi Properties issued summons against the restaurant for payment of more than R412,000 in rental arrears, together with interest, and an order evicting the defendant from the premises, ancillary relief and costs.
It alleged in court papers that Brazilia Fusion Restaurant has no bona fide defence to the action and has entered appearance to defend simply to delay the matter.
But, according to court papers received last week, Acting Judge Richard Brooks dismissed the application and granted Brazilian Fusion Restaurant leave to defend the action. He also ordered Ummi Properties to pay the restaurant's costs of the application.
According to the judgment, Brooks had found that the calculation of the rental had been based on certain extensions and proposed refurbishments to the leased property that had not yet occurred.
"The representation, which became a material term of the agreement of lease, has not been fulfilled. The extension proposed by the plaintiff has not occurred," Brooks said. However, the calculation of the rental due takes cognisance of the extension.
Ummi Properties in breach of lease agreement
"The plaintiff is in breach of a material term of the agreement," he said.
The judge also said that according to Brazilia Fusion Restuarant's opposing affidavit, the eatery asserts that at the time when the agreement of lease was entered into, certain representations were made on behalf of the plaintiff relating to the paving of areas to the front and rear of the leased premises and which would be available for exclusive use by the defendant.
Brooks said the restaurant had maintained that this precluded Ummi Properties from seeking contractual damages against it until such time as it had remedied this breach.
He said earlier this year Ummi Properties had also attempted to cancel the lease and to evict the restaurant after it sought the recovery of arrear rentals.
However, in an apparent about-face, Ummi later withdrew the action, tendering to pay the costs.
Ummi Properties had argued that the restaurant had accepted a clause in the lease agreement saying it would not make any deduction or short payment of rent, rates, municipal charges, utilities and services, insurance and service charges no matter what dispute might arise.
Brooks said: "In summary, his argument insists that the acceptance by the defendant of this term, brought about by the signature of the agreement of lease on behalf of the defendant, effectively prohibits the defendant from raising the defence, and the prospect of a claim in reconvention, as set out in the opposing affidavit.
"It follows that in my view, the defendant has done enough to demonstrate that it has a bona fide defence to the plaintiff's claims and that it should be entitled to ventilate this defence in the main action. It follows that I am of the view that the defendant has not entered appearance to defend in this matter solely for the purposes of delay," he said.
Source: Herald via I-Net Bridge
