Whild v GE Mortgage Solutions Ltd (No 2) - [2012] VSC 322

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2011 01988

SUSAN IRENE WHILD	Appellant
v
GE MORTGAGE SOLUTIONS LTD (ACN 070 797 894)	Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2012 (last written submissions received 31 May 2012)
DATE OF JUDGMENT:	2 August 2012
CASE MAY BE CITED AS:	Whild v GE Mortgage Solutions Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 322

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COSTS – Basis of calculation of costs entitlement under mortgage loan agreement – whether Memorandum of Common Provisions entitles a successful mortgagee to recover costs on a solicitor and client basis or on a party and party basis – Supreme Court (General Civil Procedure) Rules 2005, Rules 63.30 – Shepparton Projects Pty Ltd v Cave Investments Pty Ltd (No. 2) [2011] VSC 384 – Beckwith v Pedler [2000] VSCA 86 (CA) – Gomba Holdings (UK) Ltd v Minories Finance Ltd [1993] Ch 171 (CA).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.A. Strang Mr D. C. Turner	George Liberogiannis & Associates
For the Respondent	Mr S.D. Hay	Gadens Lawyers

HIS HONOUR:

Introduction

This proceeding arose as a result of an appeal against the orders of Senior Member C. McKenzie dated 31 March 2011 in Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”) Proceeding No. M171/2008 (“the VCAT proceeding”).[1] The background to this proceeding and the enforcement action taken by the respondent against the appellant under two loan agreements secured by mortgages over the appellant’s property are set out in my judgment delivered on 18 May 2012 (“the Primary Judgment”),[2] and it is not necessary to repeat those matters again now. For the purposes of this judgment, I have adopted the same abbreviations as appear in the Primary Judgment.
[1]Whild v GE Mortgage Solutions Limited (ACN: 070 797 894) (Credit) [2011] VCAT 797.
[2]Whild v GE Mortgage Solutions Ltd [2012] VSC 212.

In summary, the issues between the parties arising out of the appeal were determined on bases that:[3]

(a)the default notice dated 1 April 2004 in respect of Loan A was valid and the Tribunal was in error in finding that it was not;
(b)none of the “posting notices” could constitute a valid notice under the statutory power of sale provisions of the TLA and the Tribunal was in error in finding that such a notice constituted a notice of default for the purposes of the statutory provisions; and
(c)a contractual power of sale was available to the respondent under clauses 8.20 and 8.21 of the mortgage, but that, having found that the default notice was valid for the purposes of the TLA provisions, issues in relation to the exercise of this power do not arise and the contractual power is, in this sense, otiose in the present circumstances.

[3]Whild v GE Mortgage Solutions Ltd [2012] VSC 212, [68].

I briefly heard the parties on the questions of the…

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: [2012] VSC 322
Decision Date: 2 August 2012

CaseChat Overview and Summary

In the matter of Whild v GE Mortgage Solutions Ltd (No 2), the dispute arose from a mortgage loan agreement between the plaintiff, Mr Whild, and the defendant, GE Mortgage Solutions Ltd. The disagreement centred around the calculation of costs that the successful mortgagee was entitled to recover under the agreement. This case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the costs a successful mortgagee could recover were to be calculated on a solicitor and client basis or on a party and party basis. This determination hinged on the interpretation of the Memorandum of Common Provisions in the mortgage agreement and its alignment with statutory provisions and precedents.

The court examined the relevant statutory provisions, particularly the Supreme Court (General Civil Procedure) Rules 2005, Rule 63.30, as well as several case precedents, including Shepparton Projects Pty Ltd v Cave Investments Pty Ltd (No. 2), Beckwith v Pedler, and Gomba Holdings (UK) Ltd v Minories Finance Ltd. The court's task was to discern the intended scope of the costs recoverable under the agreement, considering the broader context of legal principles and previous judicial interpretations. The analysis involved a detailed examination of the language in the mortgage agreement, the legislative framework, and the applicability of established case law.

After careful deliberation, the court ruled that the successful mortgagee was entitled to recover costs on a party and party basis, rather than on a solicitor and client basis. The court found that the Memorandum of Common Provisions, when read in conjunction with the statutory provisions and case law, indicated a party and party basis as the appropriate method for calculating recoverable costs. This decision was grounded in a comprehensive interpretation of the agreement and the legal context in which it operated.

As a result of the ruling, the court ordered that the defendant, GE Mortgage Solutions Ltd, would be responsible for paying the plaintiff's costs on a party and party basis, in accordance with the court's findings. This decision clarified the scope of recoverable costs under the mortgage agreement and provided a clear direction for future similar disputes.

Orders