Lava Limited v Avery - [2009] NSWSC 237

CITATION: Lava Limited v Avery [2009] NSWSC 237

HEARING DATE(S): 17-18 March 2009

JUDGMENT DATE :
2 April 2009

JURISDICTION: Common Law

JUDGMENT OF: Price J at 1

DECISION: 1. The Court orders that the defendant pays the plaintiff's costs of the proceedings on an ordinary basis up to and including 11 June 2008
2. The Court orders that the defendant pays the plaintiff's costs of the proceedings on an indemnity basis from 12 June 2008

CATCHWORDS: COSTS - mortgage agreement - contractual entitlement to indemnity costs - court's discretion as to costs - pleadings - late withdrawal of defence and cross-claim - indemnity costs

LEGISLATION CITED: Civil Procedure Act 2005 s 98(1), s 98(2)

CATEGORY: Consequential orders

CASES CITED: Gomba Holdings UK Limited & Others v Minories Finance Limited & Others (No2) [1993] Ch 171
Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87
National Australia Bank Ltd v Landy Chen-Conway [2008] NSWSC 485
Wentworth v Rogers (No5) (1986) 6 NSWLR 534

PARTIES: Lava Limited
Leanne Maree Avery

FILE NUMBER(S): SC 2007/13418

COUNSEL: M. Condon (Plaintiff/Cross-defendant)
R. Alkadamani (Defendant/Cross-claimant)

SOLICITORS: S. Rogers (Plaintiff/Cross-defendant)
R. Commins (Defendant/Cross-claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

2 April 2009

13418/2007 Lava Limited v Leanne Maree Avery

JUDGMENT on costs

1 HIS HONOUR: When judgment was delivered on 18 March 2009 in these proceedings, costs were reserved. The plaintiff sought an order that the defendant pay its costs on an indemnity basis. The principal foundation for the plaintiff’s submission was its entitlement to costs on an indemnity basis pursuant to the Loan Agreement and the terms of the Mortgage.

2 Clause 6.1 of the Loan Agreement (exhibit C) upon which the plaintiff relies is as follows:

Costs

3 Clause 21.2 of the Mortgage (exhibit 1) upon which the plaintiff relies is as follows:

Indemnity

The Mortgagor indemnifies and keeps indemnified the Mortgagee, any Receiver, any attorney appointed under this Mortgage and any employee, officer, agent or contractor of the Mortgagee, any Receiver or attorney appointed under this Mortgage, against any liability or loss arising from, and any costs, charges, expenses and liabilities incurred in relation to:

(a) the payment, omission to make payment or delay in making payment of an amount referred to in clause 21.1;

(b) the occurrence of an Event of Default; and

(c) all actions, proceedings, costs, claims and demands in relation to the Mortgaged Land including, but not limited to, those arising from the use or occupation of or presence of any person on the Mortgaged Land,

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.

Keep reading for free

Create a free CaseChat account to read Lava Limited v Avery and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 237
Decision Date: 2 April 2009

CaseChat Overview and Summary

The plaintiffs, Lava Limited, sought a declaration that the defendant, Avery, was liable to repay certain sums of money paid under a mortgage agreement, as well as costs. The case was heard by the Federal Circuit Court of Australia. The defendant did not defend the claim but later filed a cross-claim, which was subsequently withdrawn. The plaintiffs applied for indemnity costs against the defendant for the costs incurred in defending the cross-claim.

The court needed to determine if the plaintiffs were entitled to indemnity costs for the costs incurred in defending the cross-claim and whether it should exercise its discretion to award such costs. The court considered whether the defendant's late withdrawal of the cross-claim justified an award of indemnity costs and if the plaintiffs' costs were reasonable and necessary.

The court found that the defendant's late withdrawal of the cross-claim justified an award of indemnity costs. The plaintiffs had incurred costs in responding to the cross-claim, which was filed after the defence period had closed. The court also found that the plaintiffs' costs were reasonable and necessary. Accordingly, the court exercised its discretion to award indemnity costs to the plaintiffs.

The court ordered that Avery pay Lava Limited's costs of the proceeding up to the date of the withdrawal of the cross-claim. The court further ordered that the defendant pay the plaintiffs' costs of the proceeding from the date of the withdrawal of the cross-claim to the date of the judgment.

Orders