JKAM Investments Pty Ltd v Damien (No. 2) [2022] NSWSC 763

JKAM Investments Pty Ltd v Damien (No. 2) [2022] NSWSC 763

Recoverability under the JKAM mortgage indemnity is strictly limited to costs and expenses that were clearly pleaded, directly connected to enforcement of the mortgage or preservation of the security, and reasonably incurred as mortgagee. Claims for remedy proceeds and fit-out costs failed for lack of pleading and incompatibility with earlier agreed amounts. Only itemised and justified costs connected to the priorities judgment and properly itemised costs of current proceedings proceed to assessment; other claims, including unpleaded claims and specified excessive legal costs, are dismissed or not assessed. General party/party costs orders to be further considered, with only 70% of...

Jurisdiction
Australia
Judgment Date
10 June 2022
Procedural Posture
Civil Equity / Damages Hearing Following Principal Liability Judgment
Outcome
Plaintiff partially succeeds; remedy proceeds and fit-out costs claims dismissed; certain costs (itemised) allowed for assessment; gross sum order for priorities proceedings costs; further procedural directions for remaining issues.
Legal Topics
['damages' 'mortgage Indemnity' 'legal Costs Assessment']
['equity' 'costs'] ['damages' 'mortgage Indemnity' 'legal Costs Assessment']

Case Brief

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Procedural Posture

Civil Equity / Damages Hearing Following Principal Liability Judgment

Legal Issues

  1. 1 ['Whether particular costs and expenses are recoverable under the indemnity clause in the JKAM mortgage' 'What damages are recoverable following election of remedies by the plaintiff' 'Scope and application of mortgage indemnity principles to claimed legal costs']

Ratio Decidendi

Recoverability under the JKAM mortgage indemnity is strictly limited to costs and expenses that were clearly pleaded, directly connected to enforcement of the mortgage or preservation of the security, and reasonably incurred as mortgagee. Claims for remedy proceeds and fit-out costs failed for lack of pleading and incompatibility with earlier agreed amounts. Only itemised and justified costs connected to the priorities judgment and properly itemised costs of current proceedings proceed to assessment; other claims, including unpleaded claims and specified excessive legal costs, are dismissed or not assessed. General party/party costs orders to be further considered, with only 70% of...

Court Disposition

Plaintiff partially succeeds; remedy proceeds and fit-out costs claims dismissed; certain costs (itemised) allowed for assessment; gross sum order for priorities proceedings costs; further procedural directions for remaining issues.

Orders

  • ["Plaintiff's claim for $691,000 remedy proceeds dismissed." "Plaintiff's claim for $651,006.90 fit-out costs dismissed." 'Plaintiff entitled to recovery of $63,383.01 legal costs to Champion (item 1) under priorities judgment.' 'Plaintiff entitled to 70% of $151,208.74 ($105,846.11) plus $6,533.17 disbursements for...