CABS v CHIRIMUTA 1999 (2) ZLR 288 (H)

Flynote

Practice and procedure — summons — what may be claimed — claim for costs and collection commission — uncontested claim for trade debt — only collection commission may be claimed — trade debt — what constitutes — does not include monies payable under mortgage bond

Headnote

A building society foreclosed on a loan it made under a mortgage bond. It claimed judgment for the outstanding balance, costs and collection commission.

Held, that collection commission is claimable by a legal practitioner from his client on an uncontested claim for a trade debt. This commission is recoverable from the judgment debtor where, in terms of a prior agreement, the judgment debtor has obliged himself to indemnify the creditor for such expenses.

Held, that collection commission is chargeable by a legal practitioner in lieu of any other fees and charges and it is never possible to claim both costs and collection commission except certain minimal costs specifically provided by the Law Society By-Laws. Where there is no agreement for the recovery of commission from the debtor, the judgment creditor, in claiming costs of suit, is confined to those minimal costs permitted to be charged in addition to commission. A full bill of costs may not be charged since those full costs will not have been incurred.

Held, further, that collection commission is only recoverable from the judgment debtor when it is chargeable against the judgment creditor. Unless expense is actually incurred by the creditor, it cannot be recovered from the debtor.

Held, further, that collection commission may only be awarded if there is an uncontested claim for a trade debt. Under the Law Society By-Laws, a claim for recovery of monies under a mortgage bond does not constitute a trade debt unless it is for arrear instalments only. Arrear instalments arise where payment is demanded under the contract and not where the contract is cancelled. A claim consequent on foreclosure of a mortgage bond over an immovable is not a trade debt.