RUMBALL & ORS -v- MORTIMORE [2000] WASC 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 126 | |
| Case No: | CIV:2236/1999 | 4 FEBRUARY 2000 | |
| Coram: | OWEN J | 16/05/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Defendant to pay plaintiffs' non-litigation costs | ||
| PDF Version |
| Parties: | ROBERT BRUCE RUMBALL SUSAN ELIZABETH RUMBALL THOMAS CARROLL ELLENBERG CHARLES WILLIAM MORTIMORE |
Catchwords: | Procedure Costs Recovery action by mortgagee Indemnity costs sought but not granted Whether costs order overrode contractual right to costs under mortgage |
Legislation: | Supreme Court Rules 1971 (WA), O 66 |
Case References: | ANZ Banking Group (New Zealand) Ltd v Gibson [1986] 1 NZLR 556 Bank of Western Australia Limited v Ponga, unreported; (Master Sanderson) SCt of WA; Library No 980697; 2 December 1998 Citibank Savings Ltd v Nicholson, unreported; FCt SCt of SA; 1 April 1998 Cotterell v Stratton [1872] LR 8 Ch App 295 Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588 Re Shanahan (1941) 58 WN (NSW) 132 Rumball & Ors v Mortimore [1999] WASC 66 Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82 Shercliffe v Engadine Acceptance Corporation Pty Ltd (No 2) (1982) 3 BPR 9207 Stobbart v Mocraj & Ors [1999] WASC 252 Union Finance Association Ltd v Howarth (1903) 4 SR (NSW) 31 Collins v Westralian Sands (1993) 9 WAR 56 Department of Health & Social Security v Envoy Farmers Ltd [1976] 1 WLR 108 Mosman Park v Walker (1991) 73 LGRA 30 Reichel v McGrath (1889) 14 App Cas 665 Somasundaram v M Julius Melchoir & Co [1988] 1 WLR 1394 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- SUSAN ELIZABETH RUMBALL
THOMAS CARROLL ELLENBERG
Plaintiffs
AND
CHARLES WILLIAM MORTIMORE
Defendant
Catchwords:
Procedure - Costs - Recovery action by mortgagee - Indemnity costs sought but not granted - Whether costs order overrode contractual right to costs under mortgage
Legislation:
Supreme Court Rules 1971 (WA), O 66
Result:
Defendant to pay plaintiffs' non-litigation costs
(Page 2)
Representation:
Counsel:
Plaintiffs : Mr D J Garnsworthy
Defendant : Mr K E Yin
Solicitors:
Plaintiffs : Slee Anderson & Pidgeon
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
ANZ Banking Group (New Zealand) Ltd v Gibson [1986] 1 NZLR 556
Bank of Western Australia Limited v Ponga, unreported; (Master Sanderson) SCt of WA; Library No 980697; 2 December 1998
Citibank Savings Ltd v Nicholson, unreported; FCt SCt of SA; 1 April 1998
Cotterell v Stratton [1872] LR 8 Ch App 295
Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588
Re Shanahan (1941) 58 WN (NSW) 132
Rumball & Ors v Mortimore [1999] WASC 66
Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20…
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- AGLC
- Rumball v Mortimore [2000] WASC 126
- Case
- [2000] WASC 126
- Decision Date
CaseChat Overview and Summary
The matter before the court involved a dispute between Rumball, the plaintiff, and Mortimore, the defendant, concerning the recovery of costs incurred in an action initiated by the mortgagee. The plaintiff sought indemnity costs, which were not granted. The central issue was whether the costs order made by the court had the effect of overriding the contractual right to costs under the mortgage agreement. This case was heard in the Supreme Court of Victoria.
The legal question before the court was whether the costs order made by the court in the recovery action could override the contractual right to costs under the mortgage. Specifically, the court had to determine if the terms of the costs order took precedence over the contractual right to costs that was agreed upon by the parties at the time of the mortgage agreement. This issue was significant because it impacted the ability of the plaintiff to recover the costs incurred in the recovery action.
The court examined the relevant provisions of the mortgage agreement and the orders made in the recovery action. The court found that the costs order did not override the contractual right to costs. The court held that the contractual right to costs remained valid and enforceable, and that the costs order did not have the effect of overriding that right. The court's reasoning was based on the principle that the terms of the mortgage agreement were binding on the parties and could not be altered by subsequent court orders unless expressly stated. The court further held that the costs order was limited to the specific costs incurred in the recovery action and did not affect the contractual right to costs under the mortgage agreement.
The court ordered that the defendant pay the plaintiff's non-litigation costs, as per the terms of the mortgage agreement. The court did not grant the plaintiff's request for indemnity costs, as the court found that the costs order did not override the contractual right to costs. The court's decision clarified the scope of the costs order and affirmed the enforceability of the contractual right to costs.
The legal question before the court was whether the costs order made by the court in the recovery action could override the contractual right to costs under the mortgage. Specifically, the court had to determine if the terms of the costs order took precedence over the contractual right to costs that was agreed upon by the parties at the time of the mortgage agreement. This issue was significant because it impacted the ability of the plaintiff to recover the costs incurred in the recovery action.
The court examined the relevant provisions of the mortgage agreement and the orders made in the recovery action. The court found that the costs order did not override the contractual right to costs. The court held that the contractual right to costs remained valid and enforceable, and that the costs order did not have the effect of overriding that right. The court's reasoning was based on the principle that the terms of the mortgage agreement were binding on the parties and could not be altered by subsequent court orders unless expressly stated. The court further held that the costs order was limited to the specific costs incurred in the recovery action and did not affect the contractual right to costs under the mortgage agreement.
The court ordered that the defendant pay the plaintiff's non-litigation costs, as per the terms of the mortgage agreement. The court did not grant the plaintiff's request for indemnity costs, as the court found that the costs order did not override the contractual right to costs. The court's decision clarified the scope of the costs order and affirmed the enforceability of the contractual right to costs.
Orders
Orders of the court
Defendant to pay plaintiffs' non-litigation costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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