Judicial Declaratory Order or Declaratur re: Interpleader Proceedings iro Judicial Attachment

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her.

Both applicants, as husband and wife, equally assert the joint ownership of some of the assets attached....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016. It was out of time in terms of notifying them of the defence....,.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”

With this context, I turn first to Mrs Mutasa's claim as first applicant.

Whether the First Applicant has a claim for rescission using Rule 449

As regards spousal claims for property under attachment, where party can prove that the property belongs to them then it will not be attached to satisfy the debt of a spouse. See the discussion in the case of The Sheriff of Zimbabwe v Elina Chikwava and Ors 272.

Where a spouse asserts that assets are exempt as solely owned property and yet cannot provide evidence to support their claim the courts generally do not entertain such claims.

Creditors can, and do often, go for such jointly-owned assets to satisfy a debt owed by a spouse in the absence of tangible proof that the property is exempt separate property. Assets are protected by the law where the marriage is out of community of property, making the spouse liable for their own debt where an asset sought to be attached clearly belongs to one spouse.

However, in most marital households, even where parties are married out of community of property, household goods and effects are generally acquired jointly and constitute part of the jointly owned property giving rise to joint community of property in relation to those specific assets.

Even though Mrs Mutasa says she owns some assets, to which she has no receipts, by and large there are unequivocal averments by both applicants that the assets are jointly-owned.

Mrs Mutasa's claim, that the judgment was erroneously given and that she needs to be part of matter because it affects her, misses the point.

The rationale for making jointly owned or acquired property executable is fairly straight forward.

Absent the application of any specific provisions of the law to the facts exempting such property, the jointly-owned property is attachable and executable because it lacks a separate identity as his or hers. As a result of the obligation to support implicit in marriage, a concept which in reality goes beyond financial spousal support during marriage or on divorce as is generally understood, such jointly owned assets become attachable as belonging to an inseparable duo. After all, when married people take their vows they are for “good times and the bad times” and for “richer or poorer.” They undertake to be there for each other. The real meaning of these vows are put to the test and certainly become clearer in times such as these when a spouse incurs a debt.

“Often, couples become aware of the legal obligation of marriage only in the event of a crisis such as a long term illness of one of the spouses, the onset of financial problems, or the breakdown of marriage itself.”

See TWILA L PERRY The “Essentials of Marriage”: Reconsidering the Duty of Support and Services 15 Yale J.L & Feminism 1 (2003). See also SOHRAB TAHVILDARAN “Support” in the Duty of Spousal Support During Marriage 20 J. Contemp. Legal Issues 35 (2011-2012).

Legal fees constitute the necessaries of life for which a spouse may need to support the other.

Jointly owned assets may indeed need to be drawn upon to satisfy the debt of the other when they are not protected by law. These are the bad times. Such times are part of the risks of marriage when assets are jointly-owned and one spouse falls into debt.

Also, this does not mean that the spouse to whom the debt does not belong needs to be part of that matter.

As regards Mrs Mutasa's claim, that she is an interested party affected by the judgment and hence entitled to its rescission, there are core observations to be made from the factual matrix.

In a marital setting, it is apt to observe that a debt is incurred either by the wife on her own, or by a husband on his own, or by both the husband and wife jointly. Whilst the debt was incurred during a marriage, it was clearly that of her husband in a matter which had nothing to do with her. The matter in which she says is an interested party was of a contractual nature between her husband and two others with the legal firm in question in relation to legal services rendered.

The spouse who incurred the debt is the one responsible for it save that under the duty of support, and, relying on the doctrine of providing necessaries to other spouse, a creditor can stretch their tentacles to recover the debt from jointly owned property.

Whilst it is acknowledged, as was highlighted when she was granted the provisional order, that she would have inevitably have some interest in the property attached after 47 years of marriage, the interest she has is certainly not a legal interest in the sense of it being necessary to make her a party to that matter.

For these reasons that I have expounded, I find that Mrs Mutasa's quest, as first applicant, to have the judgment set aside under Rule 449 lacks merit. She is not an interested party to the debt which was separately acquired by her husband.

Proof of Service, Return of Service, Address and Manner of Service re: Approach

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her....,.

Mr Mutasa, who also seeks rescission, bases his claim for rescission on the grounds that he, as an interested party, being a defendant in the matter HC9618/16 upon which default judgment was sought, never received the summons in question....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016.

It was out of time in terms of notifying them of the defence.

It is not in dispute that service upon Temba Mliswa, whose address for service could initially not be ascertained, was only done on 22 October 2016. What is material is that Temba Mliswa, through the same counsel for Mr Mutasa, had then entered an appearance to defend on behalf of all defendants in the matter. Mr Mutasa says he took this as the second service of the same summons. An appearance to defend was entered which covered all three defendants. Given the defective case number in his appearance to defend with respect to the summons served upon him, he says he took the service of summons on Mr Mliswa as putting him squarely back in the picture and on a steady course as he then filed his papers in relation to that matter even up to the PTC stage.

It is also not in dispute that on 4 November 2016, the respondent law firm had moved to advise counsel for all three defendants that the appearance to defend on behalf of Mr Mutasa was out of time and that they had already moved an application for default judgement. The respondent law firm also averred that its service of the summons, by affixing on the outer gate of Mr Mutasa's property, was proper....,.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”...,.

Whether the default judgment against the Second Applicant was granted in error

I turn now to the issue of whether the default judgment against Mr Mutasa was granted in error when he had validly entered an appearance to defend in accordance with the Rules - albeit with errors to his process.

Mr Mutasa, too, was able to obtain a provisional order against execution of the property together with his wife on the basis of his allegations at the urgent hearing that he had filed an application for rescission against a default judgment which, by nature, is a precarious order. See Nyamhuka v Mapingure 2014 (2) ZLR 229 (H).

This application for rescission has since expanded much more fully on the chain of events that led to the default judgement. As is the case with his wife's application, this court is now better placed to make an informed decision on the application as a whole.

Rule 49 is clear on what must peremptorily be done after an entry of appearance to defend has been filed. It states as follows:

“49. Notice of entry of appearance

Within twenty-four hours of the entry of appearance to defend written notice thereof shall be served on the Plaintiff or on his legal practitioner, where he sues by a legal practitioner, at the plaintiff's address for service. Such notice shall be in Form No.8.”

Put simply, within 24 hours of the entry of appearance to defend, the plaintiff, or his legal practitioner, must be advised of this fact using the prescribed form.

In casu, the plaintiff's address in the matter was known and should have been advised within 24 hours. The Rule is peremptory in nature.

The fact that two figures had been mistakenly added to the case number cannot be the reason for failure to advise the plaintiffs timeously of the appearance to defend. Mr Mutasa's appearance to defend, defective as it was, was entered by a firm of practitioners cognisant of the need to follow the Rules. There was simple disregard of the Rules on the part of his legal practitioners and a failure to pay attention to detail. There was reference to the summons having been served on the 5th instead of the 6th. The case number was incorrectly cited. To add insult to injury there was absolute disregard of the peremptory Rule to advise the other side timeously of the appearance to defend. This was only done on 25 October 2016.

It is also evident that realising the myriad shortcomings with the appearance to defend, his counsel then entered an appearance to defend for all three defendants to summons that had been served on 22 October 2016 at an address given by Temba Mliswa as his address for service. What is important is that it was not where Mr Mutasa resided. The service of the summons on 22 October 2016, for Temba Mliswa, at that address, was lucidly explained by the respondent firm in this matter.

What is beyond doubt is that an appearance to defend, defective in several respects, as outlined above, was entered and was not served on the plaintiffs timeously. By the time it purported to be served on the plaintiff, on 25 October 2016, this was well out of the stipulated 24 hours of its filing - given that appearance to defend had been entered on 17 October 2016. By that time the respondent firm had already applied for default judgment. This it did on 21 October and brought this to the attention of the applicant's counsel in a letter dated 4 November 2016.

The fact that there were subsequent indications to defend the matter by Mr Mutasa is not the point.

The case of HPP (Pvt) Ltd v Associated Newspapers of Zimbabwe 2000 (1) ZLR 318 (H) makes it clear that onus is on the defendant to apply for condonation for failure to enter appearance timeously or for removal of a bar. This was the remedy that was open to Mr Mutasa's counsel upon realising that his appearance to defend was not in order.

It was simply not done....,.

Mr Mutasa received the summons. His lawyer was negligent in handling the appearance to defend. No application for condonation was made. His application does not in any way fall under the circumstances envisaged in Rule 449....,.

The conclusion of this court is that, as regards Mr Mutasa as the second applicant, the summons which were affixed to the outer gate were indeed seen by him and his lawyers served the appearance to defend on the respondent firm out of time.

His application on the basis that the judgment was made in error as he had not received the summons therefore lacks merit.

Division of Assets of the Spouses re: Monetary Debts, Doctrine of Providing Neccessaries to Spouse & the Duty of Support

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her.

Both applicants, as husband and wife, equally assert the joint ownership of some of the assets attached....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016. It was out of time in terms of notifying them of the defence....,.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”

With this context, I turn first to Mrs Mutasa's claim as first applicant.

Whether the First Applicant has a claim for rescission using Rule 449

As regards spousal claims for property under attachment, where party can prove that the property belongs to them then it will not be attached to satisfy the debt of a spouse. See the discussion in the case of The Sheriff of Zimbabwe v Elina Chikwava and Ors 272.

Where a spouse asserts that assets are exempt as solely owned property and yet cannot provide evidence to support their claim the courts generally do not entertain such claims.

Creditors can, and do often, go for such jointly-owned assets to satisfy a debt owed by a spouse in the absence of tangible proof that the property is exempt separate property. Assets are protected by the law where the marriage is out of community of property, making the spouse liable for their own debt where an asset sought to be attached clearly belongs to one spouse.

However, in most marital households, even where parties are married out of community of property, household goods and effects are generally acquired jointly and constitute part of the jointly owned property giving rise to joint community of property in relation to those specific assets.

Even though Mrs Mutasa says she owns some assets, to which she has no receipts, by and large there are unequivocal averments by both applicants that the assets are jointly-owned.

Mrs Mutasa's claim, that the judgment was erroneously given and that she needs to be part of matter because it affects her, misses the point.

The rationale for making jointly owned or acquired property executable is fairly straight forward.

Absent the application of any specific provisions of the law to the facts exempting such property, the jointly-owned property is attachable and executable because it lacks a separate identity as his or hers. As a result of the obligation to support implicit in marriage, a concept which in reality goes beyond financial spousal support during marriage or on divorce as is generally understood, such jointly owned assets become attachable as belonging to an inseparable duo. After all, when married people take their vows they are for “good times and the bad times” and for “richer or poorer.” They undertake to be there for each other. The real meaning of these vows are put to the test and certainly become clearer in times such as these when a spouse incurs a debt.

“Often, couples become aware of the legal obligation of marriage only in the event of a crisis such as a long term illness of one of the spouses, the onset of financial problems, or the breakdown of marriage itself.”

See TWILA L PERRY The “Essentials of Marriage”: Reconsidering the Duty of Support and Services 15 Yale J.L & Feminism 1 (2003). See also SOHRAB TAHVILDARAN “Support” in the Duty of Spousal Support During Marriage 20 J. Contemp. Legal Issues 35 (2011-2012).

Legal fees constitute the necessaries of life for which a spouse may need to support the other.

Jointly owned assets may indeed need to be drawn upon to satisfy the debt of the other when they are not protected by law. These are the bad times. Such times are part of the risks of marriage when assets are jointly-owned and one spouse falls into debt.

Also, this does not mean that the spouse to whom the debt does not belong needs to be part of that matter.

As regards Mrs Mutasa's claim, that she is an interested party affected by the judgment and hence entitled to its rescission, there are core observations to be made from the factual matrix.

In a marital setting, it is apt to observe that a debt is incurred either by the wife on her own, or by a husband on his own, or by both the husband and wife jointly. Whilst the debt was incurred during a marriage, it was clearly that of her husband in a matter which had nothing to do with her. The matter in which she says is an interested party was of a contractual nature between her husband and two others with the legal firm in question in relation to legal services rendered.

The spouse who incurred the debt is the one responsible for it save that under the duty of support, and, relying on the doctrine of providing necessaries to other spouse, a creditor can stretch their tentacles to recover the debt from jointly owned property.

Whilst it is acknowledged, as was highlighted when she was granted the provisional order, that she would have inevitably have some interest in the property attached after 47 years of marriage, the interest she has is certainly not a legal interest in the sense of it being necessary to make her a party to that matter.

For these reasons that I have expounded, I find that Mrs Mutasa's quest, as first applicant, to have the judgment set aside under Rule 449 lacks merit. She is not an interested party to the debt which was separately acquired by her husband.

Consensus Ad Idem re: Approach iro Foundation, Sanctity, Privity, Retrospectivity & Judicial Variation of Contracts

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her.

Both applicants, as husband and wife, equally assert the joint ownership of some of the assets attached....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016. It was out of time in terms of notifying them of the defence....,.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”

With this context, I turn first to Mrs Mutasa's claim as first applicant.

Whether the First Applicant has a claim for rescission using Rule 449

As regards spousal claims for property under attachment, where party can prove that the property belongs to them then it will not be attached to satisfy the debt of a spouse. See the discussion in the case of The Sheriff of Zimbabwe v Elina Chikwava and Ors 272.

Where a spouse asserts that assets are exempt as solely owned property and yet cannot provide evidence to support their claim the courts generally do not entertain such claims.

Creditors can, and do often, go for such jointly-owned assets to satisfy a debt owed by a spouse in the absence of tangible proof that the property is exempt separate property. Assets are protected by the law where the marriage is out of community of property, making the spouse liable for their own debt where an asset sought to be attached clearly belongs to one spouse.

However, in most marital households, even where parties are married out of community of property, household goods and effects are generally acquired jointly and constitute part of the jointly owned property giving rise to joint community of property in relation to those specific assets.

Even though Mrs Mutasa says she owns some assets, to which she has no receipts, by and large there are unequivocal averments by both applicants that the assets are jointly-owned.

Mrs Mutasa's claim, that the judgment was erroneously given and that she needs to be part of matter because it affects her, misses the point.

The rationale for making jointly owned or acquired property executable is fairly straight forward.

Absent the application of any specific provisions of the law to the facts exempting such property, the jointly-owned property is attachable and executable because it lacks a separate identity as his or hers. As a result of the obligation to support implicit in marriage, a concept which in reality goes beyond financial spousal support during marriage or on divorce as is generally understood, such jointly owned assets become attachable as belonging to an inseparable duo. After all, when married people take their vows they are for “good times and the bad times” and for “richer or poorer.” They undertake to be there for each other. The real meaning of these vows are put to the test and certainly become clearer in times such as these when a spouse incurs a debt.

“Often, couples become aware of the legal obligation of marriage only in the event of a crisis such as a long term illness of one of the spouses, the onset of financial problems, or the breakdown of marriage itself.”

See TWILA L PERRY The “Essentials of Marriage”: Reconsidering the Duty of Support and Services 15 Yale J.L & Feminism 1 (2003). See also SOHRAB TAHVILDARAN “Support” in the Duty of Spousal Support During Marriage 20 J. Contemp. Legal Issues 35 (2011-2012).

Legal fees constitute the necessaries of life for which a spouse may need to support the other.

Jointly owned assets may indeed need to be drawn upon to satisfy the debt of the other when they are not protected by law. These are the bad times. Such times are part of the risks of marriage when assets are jointly-owned and one spouse falls into debt.

Also, this does not mean that the spouse to whom the debt does not belong needs to be part of that matter.

As regards Mrs Mutasa's claim, that she is an interested party affected by the judgment and hence entitled to its rescission, there are core observations to be made from the factual matrix.

In a marital setting, it is apt to observe that a debt is incurred either by the wife on her own, or by a husband on his own, or by both the husband and wife jointly. Whilst the debt was incurred during a marriage, it was clearly that of her husband in a matter which had nothing to do with her. The matter in which she says is an interested party was of a contractual nature between her husband and two others with the legal firm in question in relation to legal services rendered.

The spouse who incurred the debt is the one responsible for it save that under the duty of support, and, relying on the doctrine of providing necessaries to other spouse, a creditor can stretch their tentacles to recover the debt from jointly owned property.

Whilst it is acknowledged, as was highlighted when she was granted the provisional order, that she would have inevitably have some interest in the property attached after 47 years of marriage, the interest she has is certainly not a legal interest in the sense of it being necessary to make her a party to that matter.

For these reasons that I have expounded, I find that Mrs Mutasa's quest, as first applicant, to have the judgment set aside under Rule 449 lacks merit. She is not an interested party to the debt which was separately acquired by her husband.

Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

Rule 49 is clear on what must peremptorily be done after an entry of appearance to defend has been filed. It states as follows:

“49. Notice of entry of appearance

Within twenty-four hours of the entry of appearance to defend written notice thereof shall be served on the Plaintiff or on his legal practitioner, where he sues by a legal practitioner, at the plaintiff's address for service. Such notice shall be in Form No.8.”

Put simply, within 24 hours of the entry of appearance to defend, the plaintiff, or his legal practitioner, must be advised of this fact using the prescribed form....,.

The Rule is peremptory in nature....,.

The case of HPP (Pvt) Ltd v Associated Newspapers of Zimbabwe 2000 (1) ZLR 318 (H) makes it clear that onus is on the defendant to apply for condonation for failure to enter appearance timeously or for removal of a bar.

Rules of Construction or Interpretation re: Approach

Rule 49 is clear on what must peremptorily be done after an entry of appearance to defend has been filed. It states as follows:

“49. Notice of entry of appearance

Within twenty-four hours of the entry of appearance to defend written notice thereof shall be served on the Plaintiff or on his legal practitioner, where he sues by a legal practitioner, at the plaintiff's address for service. Such notice shall be in Form No.8.”

Put simply, within 24 hours of the entry of appearance to defend, the plaintiff, or his legal practitioner, must be advised of this fact using the prescribed form....,.

The Rule is peremptory in nature.

Condonation or Judicial Indulgence re: Approach, Time-Barred Proceedings, Extension of Time and Interests of Justice

The case of HPP (Pvt) Ltd v Associated Newspapers of Zimbabwe 2000 (1) ZLR 318 (H) makes it clear that onus is on the defendant to apply for condonation for failure to enter appearance timeously or for removal of a bar.

Condonation or Judicial Indulgence re: Consequential Effects of Negligent Acts of Legal Practitioners

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her.

Both applicants, as husband and wife, equally assert the joint ownership of some of the assets attached.

Mr Mutasa, who also seeks rescission, bases his claim for rescission on the grounds that he, as an interested party, being a defendant in the matter HC9618/16 upon which default judgment was sought, never received the summons in question.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016.

It was out of time in terms of notifying them of the defence.

It is not in dispute that service upon Temba Mliswa, whose address for service could initially not be ascertained, was only done on 22 October 2016. What is material is that Temba Mliswa, through the same counsel for Mr Mutasa, had then entered an appearance to defend on behalf of all defendants in the matter. Mr Mutasa says he took this as the second service of the same summons. An appearance to defend was entered which covered all three defendants. Given the defective case number in his appearance to defend with respect to the summons served upon him, he says he took the service of summons on Mr Mliswa as putting him squarely back in the picture and on a steady course as he then filed his papers in relation to that matter even up to the PTC stage.

It is also not in dispute that on 4 November 2016, the respondent law firm had moved to advise counsel for all three defendants that the appearance to defend on behalf of Mr Mutasa was out of time and that they had already moved an application for default judgement. The respondent law firm also averred that its service of the summons, by affixing on the outer gate of Mr Mutasa's property, was proper.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”...,.

Whether the default judgment against the Second Applicant was granted in error

I turn now to the issue of whether the default judgment against Mr Mutasa was granted in error when he had validly entered an appearance to defend in accordance with the Rules - albeit with errors to his process.

Mr Mutasa, too, was able to obtain a provisional order against execution of the property together with his wife on the basis of his allegations at the urgent hearing that he had filed an application for rescission against a default judgment which, by nature, is a precarious order. See Nyamhuka v Mapingure 2014 (2) ZLR 229 (H).

This application for rescission has since expanded much more fully on the chain of events that led to the default judgement. As is the case with his wife's application, this court is now better placed to make an informed decision on the application as a whole.

Rule 49 is clear on what must peremptorily be done after an entry of appearance to defend has been filed. It states as follows:

“49. Notice of entry of appearance

Within twenty-four hours of the entry of appearance to defend written notice thereof shall be served on the Plaintiff or on his legal practitioner, where he sues by a legal practitioner, at the plaintiff's address for service. Such notice shall be in Form No.8.”

Put simply, within 24 hours of the entry of appearance to defend, the plaintiff, or his legal practitioner, must be advised of this fact using the prescribed form.

In casu, the plaintiff's address in the matter was known and should have been advised within 24 hours. The Rule is peremptory in nature.

The fact that two figures had been mistakenly added to the case number cannot be the reason for failure to advise the plaintiffs timeously of the appearance to defend. Mr Mutasa's appearance to defend, defective as it was, was entered by a firm of practitioners cognisant of the need to follow the Rules. There was simple disregard of the Rules on the part of his legal practitioners and a failure to pay attention to detail. There was reference to the summons having been served on the 5th instead of the 6th. The case number was incorrectly cited. To add insult to injury there was absolute disregard of the peremptory Rule to advise the other side timeously of the appearance to defend. This was only done on 25 October 2016.

It is also evident that realising the myriad shortcomings with the appearance to defend, his counsel then entered an appearance to defend for all three defendants to summons that had been served on 22 October 2016 at an address given by Temba Mliswa as his address for service. What is important is that it was not where Mr Mutasa resided. The service of the summons on 22 October 2016, for Temba Mliswa, at that address, was lucidly explained by the respondent firm in this matter.

What is beyond doubt is that an appearance to defend, defective in several respects, as outlined above, was entered and was not served on the plaintiffs timeously. By the time it purported to be served on the plaintiff, on 25 October 2016, this was well out of the stipulated 24 hours of its filing - given that appearance to defend had been entered on 17 October 2016. By that time the respondent firm had already applied for default judgment. This it did on 21 October and brought this to the attention of the applicant's counsel in a letter dated 4 November 2016.

The fact that there were subsequent indications to defend the matter by Mr Mutasa is not the point.

The case of HPP (Pvt) Ltd v Associated Newspapers of Zimbabwe 2000 (1) ZLR 318 (H) makes it clear that onus is on the defendant to apply for condonation for failure to enter appearance timeously or for removal of a bar. This was the remedy that was open to Mr Mutasa's counsel upon realising that his appearance to defend was not in order.

It was simply not done....,.

Mr Mutasa received the summons. His lawyer was negligent in handling the appearance to defend. No application for condonation was made. His application does not in any way fall under the circumstances envisaged in Rule 449....,.

The conclusion of this court is that, as regards Mr Mutasa as the second applicant, the summons which were affixed to the outer gate were indeed seen by him and his lawyers served the appearance to defend on the respondent firm out of time.

His application on the basis that the judgment was made in error as he had not received the summons therefore lacks merit.

Automatic Bar re: Approach, Notice to Plead, Notice of Intention to Bar, Upliftment of Bar and the Dies Induciae

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home.

It is the attachment of these matrimonial goods upon which Mrs Mutasa bases her claim that a decision was made in her absence as an interested party.

She brought an urgent chamber application, in February 2017, seeking a provisional order on the basis that she had a pending application for rescission. The order was granted to accord her the opportunity to expand more fully on her claim. When the provisional order was granted in her favour, in February 2017, it was always on the understanding that the burden of proof that she is indeed an interested party in the legal sense would be on her.

She has been married to Mr Mutasa for 47 years during which time she avers that they accumulated the property in question, some of which she says she acquired personally. Due to the effluxion of time, the receipts, however, cannot be found and hence she did not proceed by way of an interpleader but chose to assert her claim using Rule 449 as an interested party in a judgment which has impacted upon her.

Both applicants, as husband and wife, equally assert the joint ownership of some of the assets attached.

Mr Mutasa, who also seeks rescission, bases his claim for rescission on the grounds that he, as an interested party, being a defendant in the matter HC9618/16 upon which default judgment was sought, never received the summons in question.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered.

In Mr Mutasa's case, the summons were served upon him on 6 October at his residence by affixing same on the outer gate of that residence. His claim is that he never saw these summons although he says he then heard of the matter from Temba Mliswa, the second defendant.

On 17 October 2016, he had entered an appearance to defend through his lawyers. He avers that the appearance to defend had some errors in relation to its citation of the case number. This appearance to defend was only served on the respondent firm of practitioners on 25 October 2016.

It was out of time in terms of notifying them of the defence.

It is not in dispute that service upon Temba Mliswa, whose address for service could initially not be ascertained, was only done on 22 October 2016. What is material is that Temba Mliswa, through the same counsel for Mr Mutasa, had then entered an appearance to defend on behalf of all defendants in the matter. Mr Mutasa says he took this as the second service of the same summons. An appearance to defend was entered which covered all three defendants. Given the defective case number in his appearance to defend with respect to the summons served upon him, he says he took the service of summons on Mr Mliswa as putting him squarely back in the picture and on a steady course as he then filed his papers in relation to that matter even up to the PTC stage.

It is also not in dispute that on 4 November 2016, the respondent law firm had moved to advise counsel for all three defendants that the appearance to defend on behalf of Mr Mutasa was out of time and that they had already moved an application for default judgement. The respondent law firm also averred that its service of the summons, by affixing on the outer gate of Mr Mutasa's property, was proper.

The Legal Position

Rule 449(1), under which the applicants pin their claim, provides as follows;

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.”

The case of Munyimi v Tauro 2013 (2) 291 (S) elucidates on what constitutes as error as follows:

“As to what constitutes an 'error'; such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include;

(a) A default judgment being granted against an applicant who had filed an appearance to defend court but which appearance had not been brought to the attention of the judge; and

(b) A false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when, in fact, no such service had been effected.”...,.

Whether the default judgment against the Second Applicant was granted in error

I turn now to the issue of whether the default judgment against Mr Mutasa was granted in error when he had validly entered an appearance to defend in accordance with the Rules - albeit with errors to his process.

Mr Mutasa, too, was able to obtain a provisional order against execution of the property together with his wife on the basis of his allegations at the urgent hearing that he had filed an application for rescission against a default judgment which, by nature, is a precarious order. See Nyamhuka v Mapingure 2014 (2) ZLR 229 (H).

This application for rescission has since expanded much more fully on the chain of events that led to the default judgement. As is the case with his wife's application, this court is now better placed to make an informed decision on the application as a whole.

Rule 49 is clear on what must peremptorily be done after an entry of appearance to defend has been filed. It states as follows:

“49. Notice of entry of appearance

Within twenty-four hours of the entry of appearance to defend written notice thereof shall be served on the Plaintiff or on his legal practitioner, where he sues by a legal practitioner, at the plaintiff's address for service. Such notice shall be in Form No.8.”

Put simply, within 24 hours of the entry of appearance to defend, the plaintiff, or his legal practitioner, must be advised of this fact using the prescribed form.

In casu, the plaintiff's address in the matter was known and should have been advised within 24 hours. The Rule is peremptory in nature.

The fact that two figures had been mistakenly added to the case number cannot be the reason for failure to advise the plaintiffs timeously of the appearance to defend. Mr Mutasa's appearance to defend, defective as it was, was entered by a firm of practitioners cognisant of the need to follow the Rules. There was simple disregard of the Rules on the part of his legal practitioners and a failure to pay attention to detail. There was reference to the summons having been served on the 5th instead of the 6th. The case number was incorrectly cited. To add insult to injury there was absolute disregard of the peremptory Rule to advise the other side timeously of the appearance to defend. This was only done on 25 October 2016.

It is also evident that realising the myriad shortcomings with the appearance to defend, his counsel then entered an appearance to defend for all three defendants to summons that had been served on 22 October 2016 at an address given by Temba Mliswa as his address for service. What is important is that it was not where Mr Mutasa resided. The service of the summons on 22 October 2016, for Temba Mliswa, at that address, was lucidly explained by the respondent firm in this matter.

What is beyond doubt is that an appearance to defend, defective in several respects, as outlined above, was entered and was not served on the plaintiffs timeously. By the time it purported to be served on the plaintiff, on 25 October 2016, this was well out of the stipulated 24 hours of its filing - given that appearance to defend had been entered on 17 October 2016. By that time the respondent firm had already applied for default judgment. This it did on 21 October and brought this to the attention of the applicant's counsel in a letter dated 4 November 2016.

The fact that there were subsequent indications to defend the matter by Mr Mutasa is not the point.

The case of HPP (Pvt) Ltd v Associated Newspapers of Zimbabwe 2000 (1) ZLR 318 (H) makes it clear that onus is on the defendant to apply for condonation for failure to enter appearance timeously or for removal of a bar. This was the remedy that was open to Mr Mutasa's counsel upon realising that his appearance to defend was not in order.

It was simply not done....,.

Mr Mutasa received the summons. His lawyer was negligent in handling the appearance to defend. No application for condonation was made. His application does not in any way fall under the circumstances envisaged in Rule 449....,.

The conclusion of this court is that, as regards Mr Mutasa as the second applicant, the summons which were affixed to the outer gate were indeed seen by him and his lawyers served the appearance to defend on the respondent firm out of time.

His application on the basis that the judgment was made in error as he had not received the summons therefore lacks merit.

Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit

The person deposing a supporting affidavit will materially have read the founding affidavit with a view to making averments in support of those in the founding affidavit.

Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered....,.

Mr Mutasa clearly acknowledges that services were provided.

The argument that there are issues regarding which services were provided that need to be ventilated at trial is also not supported by the papers that were filed in this application.

Costs re: Taxation of Costs and the Recovery of Costs

This application for rescission of judgment was brought under Order 49 Rule 449 which deals with rescission on the grounds such as, among others, that the order was erroneously sought or erroneously granted in the absence of a party affected by the judgement.

The first applicant is the wife of the second applicant against whom the judgment in question, being a default judgment, was obtained by the respondent firm of legal practitioners. For ease, I shall refer to the first applicant as Mrs Mutasa and to the second applicant as Mr Mutasa.

The default judgment was for unpaid legal fees for services allegedly rendered by the then respondent firm to Mr Mutasa. (The partnership has since split as advised in accordance with the Rules). Following the passing of the default judgement, a warrant of execution was issued which resulted in the attachment of goods at the matrimonial home....,.

The facts surrounding the default judgement were as follows:

On 22 September 2016, the respondent firm issued summons under Case No. HC9618/16 against three defendants, namely, the second applicant herein, Didymus Mutasa, as the first defendant, one Temba Mliswa as the second defendant, and one Rugare Eleck Ndidi Gumbo as the third defendant. The claim against the three defendants was for monies owing for legal services rendered....,.

Mr Mutasa clearly acknowledges that services were provided.

The argument that there are issues regarding which services were provided that need to be ventilated at trial is also not supported by the papers that were filed in this application.

The issues of which services were provided could also have been easily ascertained by asking for the bill of costs to be taxed. The respondent also has a valid point that the taxation of the costs should have been at the applicant's behest.

Final Orders re: Nature, Amendment, Variation, Rescission iro Corrections and Orders Erroneously Sought or Granted