Higgs v Retsinias - [2008] NSWSC 10

CITATION: Higgs v Retsinias [2008] NSWSC 10

HEARING DATE(S): 16 January 2008

JUDGMENT DATE :
16 January 2008

JURISDICTION: Common Law

JUDGMENT OF: Campbell JA

EX TEMPORE JUDGMENT DATE: 16 January 2008

DECISION: First defendant to pay costs of plaintiff of proceedings, those costs to be assessed in accordance with provisions of registered mortgage.

CATCHWORDS: MORTGAGES - default under mortgage - order for costs relating to enforcement of mortgage - reasonableness of mortgagee’s conduct - whether mortgagee disentitled to amount for enforcement costs - mortgage includes covenant allowing recovery of enforcement costs on basis different to that upon which courts would ordinarily order costs to be paid - MORTGAGES - circumstances in which mortgage will be void for uncertainty

LEGISLATION CITED: Real Property Act 1900

CATEGORY: Consequential orders

PARTIES:
Keith Arthur Higgs - Plaintiff
Katina Retsinias - First Defendant
Scott Darren Pascoe - Second Defendant
MDN Mortgages Pty Ltd - Third Defendant

FILE NUMBER(S): SC 14884/07

COUNSEL: A Jungwirth - Plaintiff
R Jefferis - First Defendant

SOLICITORS: Jackson Smith Lawyers - Plaintiff
S E Doyle and Associates - First Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CAMPBELL JA

WEDNESDAY 16 JANUARY 2008

14884/07 - KEITH ARTHUR HIGGS V KATINA RETSINIAS & 2 ORS

HEARING PROGRESSIVE LIST
JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application by a mortgagee of premises for an order for costs relating to enforcement of the mortgage.

2 The only live defendant in the proceedings is the first defendant. The first defendant is the registered proprietor of land in Folio Identifier 1/SP13978 known as Unit 2, 8 Fall Street Cremorne. The certificate of title of that property shows that it is subject to a registered mortgage to the plaintiff. The registered copy of that mortgage contains covenants as follows:

"3.5 ...You must, on demand by Us, pay to, or as directed by, Us, and indemnify Us against, all costs, losses, charges, expenses, liabilities, damages, fees and disbursements (including all reasonable legal costs on a solicitor and own client basis) paid or incurred by Us or incidental to:

...

(d) any breach of, or default under, this Mortgage by You (including the reasonable fees of all professional consultants properly incurred by Us in consequence of or in connection with, any such breach or default); ...

…

23. When We ask, You must pay Us any reasonable amount We reasonably incur in enforcing this Mortgage after You are in default. These may include expenses incurred in preserving or maintaining the Property such as insurance, rates and taxes payable for the Property and, if you do any Building Work on the Property, may also include any expenses incurred in completing or varying or stopping that Building Work.”

3 It is undisputed that there was a loan made by the plaintiff to the first defendant. The proceedings in which the present application is made were commenced in August of 2007, by summons in the Commercial List, seeking a variety of orders. Those…

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.

Continue reading Higgs v Retsinias

Details

AGLC: Higgs v Retsinias [2008] NSWSC 10
Case: [2008] NSWSC 10
Decision Date: 16 January 2008

CaseChat Overview and Summary

The parties involved in Higgs v Retsinias were the plaintiff, Higgs, and the defendant, Retsinias. The dispute centred around a default under a mortgage agreement, leading to an order for costs relating to the enforcement of the mortgage. The court was required to determine the reasonableness of the mortgagee's conduct and whether the mortgagee was disentitled to the amount for enforcement costs. Additionally, the mortgage included a covenant allowing recovery of enforcement costs on a basis different to that upon which courts would ordinarily order costs to be paid. The court had to consider these factors in its decision.

The legal issues before the court were whether the mortgagee's conduct in enforcing the mortgage was reasonable, and if the mortgagee was entitled to recover enforcement costs under the terms of the mortgage. The court also needed to examine the validity of the mortgage, specifically whether the clause allowing recovery of enforcement costs was void for uncertainty. The court's decision hinged on interpreting the terms of the mortgage agreement and applying relevant legal principles to determine the enforceability of the clause.

The court found that the mortgagee's conduct in enforcing the mortgage was reasonable, and the mortgagee was entitled to recover enforcement costs under the terms of the mortgage. The court held that the clause allowing recovery of enforcement costs was not void for uncertainty, as it was clear and unambiguous in its terms. The court concluded that the mortgagee was entitled to recover the full amount of enforcement costs, as stipulated in the mortgage agreement. The court's decision was based on a thorough analysis of the terms of the mortgage, the relevant legal principles, and the specific circumstances of the case.

The final orders of the court were that the mortgagee was entitled to recover the full amount of enforcement costs from the mortgagor, as stipulated in the mortgage agreement. The court's decision was based on the interpretation of the mortgage terms and the application of relevant legal principles. The court found that the mortgagee's conduct was reasonable and that the clause allowing recovery of enforcement costs was valid and enforceable. The court's decision provides clarity on the enforceability of mortgage clauses and the recovery of enforcement costs in similar cases.

Orders