RHG Mortgage Corporation Limited v Rosa (aka Rosa Fioavanti) Baira RHG Mortgage Corporation Limited v Rosario Ianni [2011] NSWSC 580

RHG Mortgage Corporation Limited v Rosa (aka Rosa Fioavanti) Baira RHG Mortgage Corporation Limited v Rosario Ianni [2011] NSWSC 580

The court declined to award indemnity costs based on Calderbank offers as the offers were not open for a reasonable time and were designed to trigger indemnity costs; ordinary costs were awarded to successful cross defendants. Sanderson orders for costs were issued where cross claimants unreasonably joined certain parties. Possession of land and amounts owing under mortgage agreements were granted to the plaintiff.

Parties
Plaintiff/1st Cross Defendant to 1st Cross Claim/cross Claimant to 2nd Cross Claim/1st Cross Claimant to 2nd Cross Claim: RHG Mortgage Corporation Limited; Defendant/cross Claimant to 1st & 4th Cross Claims: Rosa Baira (aka Rosa Fioavanti); 2nd Cross Defendant to 1st Cross Claim/3rd Cross Defendant to 2nd Cross Claim/2nd Cross Defendant to 3rd Cross Claim: Australian Mortgage & Business Finance Solutions Pty Limited; 3rd Cross Defendant to 1st Cross Claim/4th Cross Defendant to 2nd Cross Claim/3rd Cross Defendant to 3rd Cross Claim: Peter Famularo; 1st Cross Defendant to 2nd Cross Claim/cross Claimant to 3rd Cross Claim/1st Cross Defendant to 1st Cross Claim/1st Cross Claimant to 3rd Cross Claim: RHG Home Loans Pty Ltd; 5th Cross Defendant to 3rd Cross Claim/2nd Cross Defendant to 2nd Cross Claim/1st Cross Defendant to 3rd Cross Claim: Fast Track Finance Group Pty Ltd; 1st Cross Defendant to 4th Cross Claim/5th Cross Defendant to 2nd Cross Claim/4th Cross Defendant to 3rd Cross Claim: Joseph Ianni; 2nd Cross Defendant to 4th Cross Claim/6th Cross Defendant to 2nd Cross Claim/5th Cross Defendant to 3rd Cross Claim: Sandra Ianni; 1st Defendant/cross Claimant to 1st Cross Claim: Rosario Ianni; 2nd Defendant/ Cross Claimant to 1st Cross Claim: Domenica Ianni
Jurisdiction
Australia
Judgment Date
17 June 2011
Procedural Posture
Civil / Final Judgment and Costs Orders
Outcome
Plaintiff granted possession of land and judgment for amounts owing under mortgage agreements; costs orders mostly on ordinary basis, with some indemnity and Sanderson orders; cross claims dismissed with ordinary costs awarded to successful defendants.
Legal Topics
Costs, Possession of Land, Mortgage Recovery, Cross Claims
Civil Procedure Costs Possession of Land Mortgage Recovery Cross Claims

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Parties

RHG Mortgage Corporation Limited

Plaintiff/1st Cross Defendant to 1st Cross Claim/cross Claimant to 2nd Cross Claim/1st Cross Claimant to 2nd Cross Claim

Rosa Baira (aka Rosa Fioavanti)

Defendant/cross Claimant to 1st & 4th Cross Claims

Australian Mortgage & Business Finance Solutions Pty Limited

2nd Cross Defendant to 1st Cross Claim/3rd Cross Defendant to 2nd Cross Claim/2nd Cross Defendant to 3rd Cross Claim

Peter Famularo

3rd Cross Defendant to 1st Cross Claim/4th Cross Defendant to 2nd Cross Claim/3rd Cross Defendant to 3rd Cross Claim

RHG Home Loans Pty Ltd

1st Cross Defendant to 2nd Cross Claim/cross Claimant to 3rd Cross Claim/1st Cross Defendant to 1st Cross Claim/1st Cross Claimant to 3rd Cross Claim

Fast Track Finance Group Pty Ltd

5th Cross Defendant to 3rd Cross Claim/2nd Cross Defendant to 2nd Cross Claim/1st Cross Defendant to 3rd Cross Claim

Joseph Ianni

1st Cross Defendant to 4th Cross Claim/5th Cross Defendant to 2nd Cross Claim/4th Cross Defendant to 3rd Cross Claim

Sandra Ianni

2nd Cross Defendant to 4th Cross Claim/6th Cross Defendant to 2nd Cross Claim/5th Cross Defendant to 3rd Cross Claim

Rosario Ianni

1st Defendant/cross Claimant to 1st Cross Claim

Domenica Ianni

2nd Defendant/ Cross Claimant to 1st Cross Claim

Procedural Posture

Civil / Final Judgment and Costs Orders

Legal Issues

  1. 1 Entitlement to indemnity costs based on Calderbank offers
  2. 2 Appropriateness of Sanderson orders for costs
  3. 3 Entitlement to possession of land under mortgage agreements

Ratio Decidendi

The court declined to award indemnity costs based on Calderbank offers as the offers were not open for a reasonable time and were designed to trigger indemnity costs; ordinary costs were awarded to successful cross defendants. Sanderson orders for costs were issued where cross claimants unreasonably joined certain parties. Possession of land and amounts owing under mortgage agreements were granted to the plaintiff.

Court Disposition

Plaintiff granted possession of land and judgment for amounts owing under mortgage agreements; costs orders mostly on ordinary basis, with some indemnity and Sanderson orders; cross claims dismissed with ordinary costs awarded to successful defendants.

Orders

  • In Baira proceedings: Defendant to give plaintiff possession of land (319 Livingstone Road, Marrickville), leave to issue writ of possession, verdict and judgment for plaintiff for $846,114.16 plus costs, orders regarding cross claims and costs (ordinary/indemnity/Sanderson).
  • In Ianni proceedings: Defendants to give plaintiff possession of land (159 Thompson Street, Drummoyne), leave to issue writ of possession, verdict and judgment for plaintiff for $1,225,393.43 plus costs, orders regarding cross claims and costs (ordinary/indemnity/Sanderson).