SON HOU ENTERPRISES PTY LTD and ANOR v BANK OF CHINA and ANOR [1994] NSWCA 290

SON HOU ENTERPRISES PTY LTD and ANOR v BANK OF CHINA and ANOR [1994] NSWCA 290

As the matter was resolved by agreement between the parties and the orders made were consistent with what the mortgagor was seeking, but no formal order was made in its favour under the summons, the appropriate order is to dismiss the summons for leave and make no order as to costs. Indemnity costs are not granted in the circumstances.

Parties
Mortgagor: Son Hou Enterprises Pty Ltd; Mortgagee: Bank of China
Jurisdiction
Australia
Judgment Date
22 August 1994
Procedural Posture
Application for Leave to Appeal / Costs Determination Following Settlement of Interlocutory Orders
Outcome
Summons for leave dismissed. No order as to costs. Application for indemnity costs declined.
Legal Topics
Costs, Interlocutory Relief, Appeals
Civil Procedure Costs Interlocutory Relief Appeals

Case Brief

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Parties

Son Hou Enterprises Pty Ltd

Mortgagor

Bank of China

Mortgagee

Procedural Posture

Application for Leave to Appeal / Costs Determination Following Settlement of Interlocutory Orders

Legal Issues

  1. 1 Appropriate order for costs following summons for leave to appeal that became unnecessary due to parties' agreement
  2. 2 Entitlement to indemnity costs in light of settlement and Calderbank offer

Ratio Decidendi

As the matter was resolved by agreement between the parties and the orders made were consistent with what the mortgagor was seeking, but no formal order was made in its favour under the summons, the appropriate order is to dismiss the summons for leave and make no order as to costs. Indemnity costs are not granted in the circumstances.

Court Disposition

Summons for leave dismissed. No order as to costs. Application for indemnity costs declined.

Orders

  • Summons for leave dismissed
  • No order as to costs