Commonwealth Bank of Australia v Segal [2016] NSWSC 1016

Commonwealth Bank of Australia v Segal [2016] NSWSC 1016

The Common Fund was effectively exhausted by costs incurred because of Dr Segal's cross-claim and appeal, so drawdowns beyond Dr Segal's $75,000 share were for his benefit and to Mr Barel's detriment. Campbell J's indemnity order could therefore be quantified at $75,000. The Bank's right under cl 9.3 of the Mortgage was not confined to assessed party party costs. The Court was not varying Campbell J's order under UCPR r 36.16, but exercising its inherent jurisdiction to make a supplemental order implementing it. Because Mr Barel had been deprived of his $75,000 from the relevant period, interest of $4,500 was awarded, producing judgment for $79,500.

Jurisdiction
Australia
Judgment Date
22 July 2016
Procedural Posture
Amended Notice of Motion in Common Law Proceedings Seeking Orders to Give Effect to an Indemnity Order / Principal Judgment on the Second Cross Defendant's Amended Notice of Motion
Outcome
Judgment for the second cross-defendant against the cross-claimant in the sum of $79,500, with the cross-claimant to pay the second cross-defendant's costs of the notice of motion.
Legal Topics
['further or Supplemental Orders' 'inherent Jurisdiction' 'indemnity' "mortgagee's Costs and Expenses" 'proceeds of Sale' 'pre Judgment Interest' 'costs of Notice of Motion']
['civil Procedure' 'property Law' 'banking and Finance' 'costs'] ['further or Supplemental Orders' 'inherent Jurisdiction' 'indemnity' "mortgagee's Costs and Expenses" 'proceeds of Sale' 'pre Judgment Interest' 'costs of Notice of Motion']

Case Brief

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Procedural Posture

Amended Notice of Motion in Common Law Proceedings Seeking Orders to Give Effect to an Indemnity Order / Principal Judgment on the Second Cross Defendant's Amended Notice of Motion

Legal Issues

  1. 1 ['Whether the Court should make orders requiring the cross-claimant to pay the second cross-defendant a quantified amount under the indemnity ordered by Campbell J on 29 May 2015.' "Whether the Bank's drawdowns from the retained surplus sale proceeds were limited to assessed party party costs under cl 9.3 of the Mortgage." "Whether the appropriate source of power was UCPR r 36.16 or the Court's inherent jurisdiction to make supplemental orders implementing an existing order." "Whether interest should be awarded on the second cross-defendant's $75,000 share of the retained funds."]

Ratio Decidendi

The Common Fund was effectively exhausted by costs incurred because of Dr Segal's cross-claim and appeal, so drawdowns beyond Dr Segal's $75,000 share were for his benefit and to Mr Barel's detriment. Campbell J's indemnity order could therefore be quantified at $75,000. The Bank's right under cl 9.3 of the Mortgage was not confined to assessed party party costs. The Court was not varying Campbell J's order under UCPR r 36.16, but exercising its inherent jurisdiction to make a supplemental order implementing it. Because Mr Barel had been deprived of his $75,000 from the relevant period, interest of $4,500 was awarded, producing judgment for $79,500.

Court Disposition

Judgment for the second cross-defendant against the cross-claimant in the sum of $79,500, with the cross-claimant to pay the second cross-defendant's costs of the notice of motion.

Orders

  • ['Judgment for the second cross-defendant (applicant) against the cross-claimant (respondent) in the sum of $79,500.' "Order the cross-claimant to pay the second cross-defendant's (applicant's) costs of the notice of motion." "I note that order (1) is intended to implement order (4) made by Campbell J on 29 May 2015...