Manly Property Holdings Pty Ltd v Lisker Pty Ltd & Anor (No. 2) [2018] NSWSC 61

Manly Property Holdings Pty Ltd v Lisker Pty Ltd & Anor (No. 2) [2018] NSWSC 61

BOQ validly deducted its costs of defending Lisker's cross-claim at settlement because the mortgage General Conditions were sufficiently wide to cover costs incurred in administering the mortgage, monitoring the mortgage, and acting in connection with the property and BOQ's rights. Lisker's cross-claim against BOQ failed because Lisker failed against MPH, and BOQ was only in the proceedings because of Lisker's cross-claim; therefore costs should follow the event. However, Lisker was not a party to the BOQ mortgage and had not acted unreasonably, so Lisker was liable for BOQ's costs only on the ordinary basis, not the indemnity basis.

Jurisdiction
Australia
Judgment Date
05 February 2018
Procedural Posture
Costs in Equity Proceedings Involving a Mortgage and Cross Claim / Post Judgment Determination of Costs, Mortgage Deduction and Directions After Earlier Judgment
Outcome
Lisker's cross-claim against BOQ was dismissed. BOQ was held entitled to deduct its costs of the cross-claim at settlement. Lisker was ordered to pay BOQ's costs of the cross-claim on the ordinary basis, with further short minutes and directions to address remaining issues.
Legal Topics
['costs Following the Event' 'costs of Cross Claim' 'mortgagee Indemnity for Legal Costs' 'redemption of Mortgage' 'deduction of Mortgagee Costs at Settlement' 'party/party Costs and Indemnity Costs']
['civil Procedure' 'costs' 'equity' 'mortgages' 'real Property'] ['costs Following the Event' 'costs of Cross Claim' 'mortgagee Indemnity for Legal Costs' 'redemption of Mortgage' 'deduction of Mortgagee Costs at Settlement' 'party/party Costs and Indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs in Equity Proceedings Involving a Mortgage and Cross Claim / Post Judgment Determination of Costs, Mortgage Deduction and Directions After Earlier Judgment

Legal Issues

  1. 1 ["Whether Bank of Queensland Limited was entitled under its mortgage terms to deduct its costs of defending Lisker's cross-claim from the settlement payout." "Whether Lisker should pay Bank of Queensland Limited's costs of Lisker's cross-claim against Bank of Queensland Limited." 'Whether any costs payable by Lisker to Bank of Queensland Limited should be on the ordinary basis or indemnity basis.' 'How to avoid double compensation to Bank of Queensland Limited if it recovered ordinary costs from Lisker after already making the settlement deduction.']

Ratio Decidendi

BOQ validly deducted its costs of defending Lisker's cross-claim at settlement because the mortgage General Conditions were sufficiently wide to cover costs incurred in administering the mortgage, monitoring the mortgage, and acting in connection with the property and BOQ's rights. Lisker's cross-claim against BOQ failed because Lisker failed against MPH, and BOQ was only in the proceedings because of Lisker's cross-claim; therefore costs should follow the event. However, Lisker was not a party to the BOQ mortgage and had not acted unreasonably, so Lisker was liable for BOQ's costs only on the ordinary basis, not the indemnity basis.

Court Disposition

Lisker's cross-claim against BOQ was dismissed. BOQ was held entitled to deduct its costs of the cross-claim at settlement. Lisker was ordered to pay BOQ's costs of the cross-claim on the ordinary basis, with further short minutes and directions to address remaining issues.

Orders

  • ["Dismiss Lisker's cross-claim against BOQ." "Order Lisker to pay the BOQ's costs of Lisker's cross-claim against the BOQ on the ordinary basis." 'That the parties otherwise bring in short minutes of order to give effect to these reasons.' 'List the proceedings for directions on 5 March 2018 at 9.30am.']