Elders Trustee & Executor Co. Ltd v E.g. Reeves Pty Ltd

Re: ELDERS TRUSTEE and EXECUTOR COMPANY LIMITED
And: E.G. REEVES PTY. LIMITED; EDWARD GEORGE REEVES and DAPHNE JOAN REEVES
No. G419 of 1986
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Practice and Procedure - Costs - covenant in a mortgage deed provided for the payment of costs as between solicitor and client - costs on solicitor and client basis discussed.

Federal Court of Australia Act 1976 s. 43

HEARING

SYDNEY

#DATE 12:2:1988

ORDER

The first respondent have judgment on the cross-claim for $697,902.06. Note that the first respondent will seek judgment upon the cross-claim for such further sum as may be found in its favour upon the taking of the account herein provided for.

The applicant pay the second and third respondents their costs of the proceedings (including any reserved costs) but limited to such items as are allowable on a party and party basis and are not included in the items allowed on the taking of the account herein provided for.

There be taken before the Registrar an account of all items of costs and expenses of the first respondent in the present proceedings, No. G419 of 1986, (including the cross-claim) up to the date of these orders, such account to be taken as between solicitor and client, which is to be understood as being on a common fund basis and as not including items unreasonably incurred or for costs and expenses of an unreasonable amount.

Direct that the proceedings be re-listed before me for further directions after the Registrar has certified the results of the account.

Direct that the taking of the account stand over to the Registrar for directions at a time and place to be fixed by him and communicated to the parties.

The parties have liberty to apply to the Court on 7 days' written notice.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

Counsel for the Applicant: Mr. R.N. Talbot instructed by Messrs. Madgwicks

Counsel for the Respondent: Mr. B.R. McClintock instructed by Messrs. Cutler, Hughes and Harris &

JUDGE1

Much of the previous history of these proceedings is set out in part in the judgments delivered on 29 September 1987 and 3 November 1987. On 3 November 1987, orders were made dismissing the application and standing over all questions of costs. There remained the question of the disposition of the cross-claim by the first respondent against the applicant.

1. The first respondent seeks, on the cross-claim, to recover (as mortgagee) from the applicant (as mortgagor) moneys claimed as due and owing under the personal covenants in a mortgage registered under the provisions of the New South Wales Real Property Act 1900, as dealing No. V560106. The mortgage was a second mortgage over the "Booka" property. That property has been sold in exercise of the power of sale under the first mortgage, hence the reliance by the first respondent upon the personal covenants.…