In the matter of Fearndale Holdings Pty Ltd (admin apptd) (recs & mgrs apptd) [2019] NSWSC 1885

In the matter of Fearndale Holdings Pty Ltd (admin apptd) (recs & mgrs apptd) [2019] NSWSC 1885

Where a mortgagee advances multiple claims in substantial amounts that cannot be properly justified by evidence and fails to establish asserted entitlements when challenged, such conduct amounts to misconduct sufficient to deprive the mortgagee or its assignee of contractual or other entitlement to the costs of a reference.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Costs Application / Post Judgment Costs Orders
Outcome
Orders as to costs made in accordance with the referee's provisional view; mortgagee and its assignee denied a wider or contractual right to costs due to misconduct.
Legal Topics
['costs' 'reference' 'contractual Entitlement to Costs' 'mortgage Enforcement']
['equity' 'corporations'] ['costs' 'reference' 'contractual Entitlement to Costs' 'mortgage Enforcement']

Case Brief

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Procedural Posture

Costs Application / Post Judgment Costs Orders

Legal Issues

  1. 1 ['Whether Australian Lending Investment Pty Ltd is entitled to recover costs of the reference under contractual and mortgage documentation' 'Whether conduct by CCF and its assignees amounted to misconduct depriving entitlement to costs']

Ratio Decidendi

Where a mortgagee advances multiple claims in substantial amounts that cannot be properly justified by evidence and fails to establish asserted entitlements when challenged, such conduct amounts to misconduct sufficient to deprive the mortgagee or its assignee of contractual or other entitlement to the costs of a reference.

Court Disposition

Orders as to costs made in accordance with the referee's provisional view; mortgagee and its assignee denied a wider or contractual right to costs due to misconduct.

Orders

  • ["Costs of the reference not awarded to Australian Lending Investment Pty Ltd or CCF on contractual or indemnity basis; orders made as per referee's provisional recommendations."]