Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd (No 3)

The case involves Hoho Property Pty Ltd, the borrower, and Bass Finance No 37 Pty Ltd, the mortgagee. The dispute originated from a challenge by the borrower to set aside finance documents on grounds of duress, unconscionable conduct, and under the Contracts Review Act. The mortgagee filed a cross-claim seeking repayment and possession. The central legal issue was the mortgagee's entitlement to costs under the general law, particularly considering rule 42.25 of the Uniform Civil Procedure Rules. The mortgagee had attempted to rely on a Dobbs certificate to support its claim but failed due to its invalidity. The borrower succeeded partially in their Contracts Review Act claim but this success was rendered moot by the mortgagee's failure. The mortgagee then sought indemnity costs.

The court considered the principles outlined at [4]-[10] and held that the contractual provisions did not unambiguously confer a right to indemnity costs. The mortgagee's failure to tender a valid Dobbs certificate was deemed unreasonable conduct. The parties experienced an equal measure of success and failure throughout the litigation. Consequently, the court found no grounds to make an order as to costs. The mortgagee's failure to tender a valid Dobbs certificate significantly impacted its ability to secure costs, highlighting the importance of procedural compliance in such matters.