Perpetual Trustees Australia Ltd v Barker - [2004] SASC 58

PERPETUAL TRUSTEES AUSTRALIA LTD & ORS
v
BARKER
[2004] SASC 58
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ: I would allow the appeal for the purpose of ordering that paragraph 1 of the order of 22 August 2003 be varied to provide that the costs payable by the plaintiff to the first defendant be taxed as between solicitor and client, but would otherwise dismiss the appeal. I agree with the reasons given by Duggan J. I agree also with the reasons given by Duggan J for the order previously made, that the application by Mr Barker for an extension of time within which to cross appeal be refused, and that the purported notice of cross appeal be struck out.
DUGGAN J. This is an appeal against two components of a costs order.
The appellant, as mortgagee, took steps to enforce a power of sale over property owned by the respondent mortgagor. The respondent then applied pursuant to s 55A(3) of the Law of Property Act 1936 (“the Act”) for relief against the enforcement of the appellant’s right of sale. The respondent’s application was unsuccessful.
The learned judge appealed from ordered that the respondent pay the appellant’s costs of the respondent’s application on a party and party basis. The costs order also required the appellant to pay the respondent’s costs associated with an application by the respondent for an interlocutory injunction prior to the hearing of the application for relief.
The appellant argued on appeal that the judge appealed from erred in not ordering that the appellant’s costs on the application be awarded on an indemnity or solicitor and own client basis. It was also argued that the court erred in directing that the appellant pay the respondent’s costs on the application for the interlocutory injunction.
The respondent represented himself at the hearing of the application for relief and on the appeal before this court. Prior to the commencement of the appeal he purported to file a cross-appeal against the dismissal of the application for relief. The notice of appeal was filed out of time, but was treated as incorporating an application for an extension of time for the filing of the appeal. However, the extension of time was refused for reasons which are set out below.
The proceedings arose in the following circumstances. The respondent purchased vacant land at Craigmore and contracted with a builder to erect a house on the site. The respondent was entitled to a first homeowner’s grant of $14,000 to assist with the building. Most of the balance of the purchase and building costs were borrowed from the appellant and secured by a mortgage over the property.
The respondent defaulted in the payment of instalments due under the mortgage in June, July and August 2002. A notice of demand was served on him on 7 August 2002. On 23 August 2002 the appellant served on the respondent a notice of default and notice of intention to exercise the mortgagee’s power of sale in…

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: [2004] SASC 58
Decision Date: 11 March 2004

CaseChat Overview and Summary

This case involves an appeal by Perpetual Trustees Australia Ltd against a costs order made in relation to a mortgage dispute. The respondent, Barker, had defaulted on his mortgage payments and Perpetual Trustees took steps to enforce a power of sale over Barker's property. Barker applied for relief under section 55A(3) of the Law of Property Act 1936, which was unsuccessful. The primary judge ordered Barker to pay Perpetual Trustees' costs on a party and party basis, and Perpetual Trustees to pay Barker's costs associated with an application for an interlocutory injunction. Perpetual Trustees appealed the costs orders, arguing that they should be awarded on an indemnity or solicitor and own client basis. Barker also filed a purported cross-appeal, which was dismissed. The Full Court allowed the appeal in part, ordering that Perpetual Trustees' costs be taxed on a solicitor and client basis. However, the court found that Barker's tactics in attempting to avoid the consequences of his default justified Perpetual Trustees' opposition to the interlocutory injunction and refused to interfere with the judge's discretion in ordering costs. The court dismissed Barker's purported cross-appeal as it was filed out of time and had no prospect of success.

The legal issues before the court were whether the judge erred in not ordering that Perpetual Trustees' costs on the application be awarded on an indemnity or solicitor and own client basis, and whether the judge erred in directing that Perpetual Trustees pay Barker's costs on the application for the interlocutory injunction. The court considered the terms of the mortgage and loan contract, the nature of the procedure provided for in section 55A(3) of the Act, and the principles relating to the recovery of enforcement expenses. The court held that the covenants in the mortgage did not impact the general costs discretion and costs were awarded on a party and party basis. However, the court found that the expenses incurred by Perpetual Trustees in relation to Barker's application came within the mortgage's enforcement expenses clause and costs should have been awarded on a solicitor and client basis. The court also found that Barker's tactics justified Perpetual Trustees' opposition to the interlocutory injunction and refused to interfere with the judge's discretion in ordering costs.

Orders