ADG GLOBAL SUPPLY vs DRILL MASTERS AFRICA LTD

The questions that stand out for determination in the present application are these:

Whether the Plaintiff/Respondent’s (Plaintiff) action is statute barred and if so whether the action may be terminated summarily by this court.

A reading of the Affidavit of the Defendant/Applicant (Defendant) discloses that its Application is hinged to Section 4 of NRCD 54 (the Act) which states as follows:

“.. 4. Actions barred after six years

A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued in the case of

a) An action founded on a simple contract ....

b) The action is founded on quasi contract “

To be able to understand the contentions of both parties, it is important to set the scene by giving a brief background to the present dispute.

On the 22nd of December 2021, the Plaintiff/Respondent (Plaintiff) instituted the instant suit praying inter alia for;

a) The payment of the sum of Two Hundred and Forty-Six Thousand Six Hundred and Forty-Nine Austrian Dollars (AUD$ 246, 649,00) being the outstanding balance owed the Plaintiff as at the 13th January, 2015

b) Interest of 1.5 % on the above sum from the 13th of January, 2015 until date of final payment and thereafter at the prevailing bank rate until date of final payment.

Following an Order of this Court directed at the Defendant to provide further and better particulars of certain averments contained in its original Statement of Defence, the Defendant on the 11th of December, 2022 filed an Amended Statement of Defence. Salient among the matters pleaded in the said Amended Statement of Defence are Paragraphs 12 and 13 which I reproduce hereunder for the sake of pellucidity;

12. Defendant avers that, from the Plaintiff’s very own pleadings as filed in this Court, it is without dispute that the cause of action has lapsed by operation of law and the action herein is incompetent the reason being that the Plaintiff’s action having accrued on January, 2015 and the instant Writ having been issued on the 22nd December, 2021, the instant action sins against Sections 3, 4 and 5 of NRCD 54 since the action was commenced outside the period allowed by law.

13. Defendant further avers under the Australian Law pursuant to which the liquidators herein have commenced the instant suit, the capacity of the liquidators to institute the current action has terminated by operation of law and hence the Plaintiffs and or their liquidators herein lack the requisi