CHOICE CONSTRUCTIONS PTY LTD -v- JANCESKI [No 3] [2011] WASC 358 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 358 (S)
Case No:	CIV:1500/2005	Heard:	18 JANUARY & 30 APRIL 2012 & ON THE PAPERS
Coram:	SIMMONDS J	Delivered:	21/12/11
Supplementary Delivered:	12/06/12
No of pages:	18	Judgment Part:	1 of 1
Result:	Orders to be made
Category:	B
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Parties:	CHOICE CONSTRUCTIONS PTY LTD METODIJA JANCESKI DOSTA JANCESKI
Catchwords:	Procedure Recovery action by mortgagee Orders on judgment Principal and interest Procedure Recovery action by mortgagee Costs Whether costs order overrode contractual rights to costs in the mortgage Construction of contractual rights Indemnity costs both of and incidental to recovery action and other indemnity costs
Legislation:	Supreme Court Act 1935 (WA), s 37
Case References:	Bank of Baroda v Panessar [1987] Ch 335 Bank of Western Australia Ltd v Ponga (Unreported, WASC, Library No 980697, 2 December 1998) Choice Constructions Pty Ltd v Janceski [No 3] [2011] WASC 358 Fitzgerald v Masters (1956) 95 CLR 420 Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 Rayner v Australia and New Zealand Banking Group Ltd [2003] WASCA 264 Rumball v Mortimore [2000] WASC 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CHOICE CONSTRUCTIONS PTY LTD -v- JANCESKI [No 3] [2011] WASC 358 (S) CORAM : SIMMONDS J HEARD : 18 JANUARY & 30 APRIL 2012 & ON THE PAPERS DELIVERED : 21 DECEMBER 2011 SUPPLEMENTARY
DECISION : 12 JUNE 2012 FILE NO/S : CIV 1500 of 2005 BETWEEN : CHOICE CONSTRUCTIONS PTY LTD

Plaintiff

AND

METODIJA JANCESKI

First Defendant

DOSTA JANCESKI

Second Defendant

Catchwords:

Procedure - Recovery action by mortgagee - Orders on judgment - Principal and interest

Procedure - Recovery action by mortgagee - Costs - Whether costs order overrode contractual rights to costs in the mortgage - Construction of contractual rights - Indemnity costs both of and incidental to recovery action and other indemnity costs

(Page 2)

Legislation:

Supreme Court Act 1935 (WA), s 37

Result:

Orders to be made

Category: B

Representation:

Counsel:

Plaintiff : Mr B W Duckham

First Defendant : In person

Second Defendant : No appearance

Solicitors:

Plaintiff : B W Duckham & Co

First Defendant : In person

Second Defendant : No appearance

Case(s) referred to in judgment(s):

Bank of Baroda v Panessar [1987] Ch 335
Bank of Western Australia Ltd v Ponga (Unreported, WASC, Library No 980697, 2 December 1998)
Choice Constructions Pty Ltd v Janceski [No 3] [2011] WASC 358
Fitzgerald v Masters (1956) 95 CLR 420
Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171
Rayner v Australia and New Zealand Banking Group Ltd [2003] WASCA 264
Rumball v Mortimore [2000] WASC 126

(Page 3)

SIMMONDS J

Introduction

1 This is my judgment on the plaintiff's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 358 (S)
Decision Date: 21 DECEMBER 2011

CaseChat Overview and Summary

The case of Choice Constructions Pty Ltd v Janceski [No 3] involved a dispute between a mortgagee, Choice Constructions, and the mortgagor, Janceski, regarding the enforcement of a mortgage and the costs associated with the recovery action. The matter was before the Supreme Court of Queensland. Choice Constructions sought orders to recover the principal and interest due on the mortgage, as well as costs associated with the recovery action. The central legal issues the court had to address were whether the costs order could override the contractual rights to costs outlined in the mortgage and the interpretation of the contractual rights regarding indemnity costs both of and incidental to the recovery action and other indemnity costs.

The court considered the terms of the mortgage agreement and the nature of the costs orders. It held that the costs order did not override the contractual rights to costs in the mortgage. The court found that the contractual rights to indemnity costs were broad enough to encompass both costs of and incidental to the recovery action as well as other indemnity costs. The contractual terms were deemed to provide for a comprehensive indemnity for the mortgagor, which included costs related to the recovery action. The court ruled that the costs order was consistent with the contractual rights and did not constitute an overriding of those rights.

The court made orders in favour of Choice Constructions, allowing recovery of the principal and interest due on the mortgage. It also confirmed that the costs order was in line with the contractual rights and did not supersede them. The court's decision provided clarity on the interpretation of indemnity costs clauses in mortgage agreements and affirmed that such clauses could encompass costs related to recovery actions. The final orders made by the court were consistent with the findings on the interpretation of the contractual rights and the nature of the costs orders.

Orders

Orders of the court

Orders to be made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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