Westlawn Finance Limited v Tagg (No 2) [2018] NSWSC 1762

Westlawn Finance Limited v Tagg (No 2) [2018] NSWSC 1762

Westlawn was entitled to judgment against Mrs Tagg for the agreed amount excluding costs of the proceedings, because s 98 of the Civil Procedure Act 2005 (NSW) prevents recovery of proceedings costs except by court order. The mortgage did, however, require Mrs Tagg to pay Westlawn's costs of the proceedings against her on an indemnity basis because the proceedings sought to exercise rights under the mortgage. No costs order was justified against Mr Tagg for the claim against Mrs Tagg because the exceptional circumstances required for a third party costs order were not shown. No Sanderson order should be made against Mrs Tagg for the contingent claims because those claims were weak and...

Jurisdiction
Australia
Judgment Date
19 November 2018
Procedural Posture
Equity Commercial List Costs Decision Following Judgment / Determination of Amount of Judgment and Costs After Reasons Delivered in Westlawn Finance Limited V Tagg [2018] NSWSC 1491
Outcome
Judgment entered for Westlawn against Mrs Tagg; claims against Mr Tagg and Circles of Gold dismissed; Mrs Tagg's cross-claim dismissed; indemnity costs ordered against Mrs Tagg for the proceedings against her; Westlawn ordered to pay the costs of Mr Tagg and Circles of Gold.
Legal Topics
['indemnity Costs' 'costs Discretion' 'contractual Costs Clauses' 'mortgage Enforcement Costs' 'third Party Costs Orders' 'bullock and Sanderson Orders' 'contingent Claims' 'abandoned Defences']
['costs' 'contracts' 'consumer Law' 'equity Commercial List'] ['indemnity Costs' 'costs Discretion' 'contractual Costs Clauses' 'mortgage Enforcement Costs' 'third Party Costs Orders' 'bullock and Sanderson Orders' 'contingent Claims' 'abandoned Defences']

Case Brief

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Procedural Posture

Equity Commercial List Costs Decision Following Judgment / Determination of Amount of Judgment and Costs After Reasons Delivered in Westlawn Finance Limited V Tagg [2018] NSWSC 1491

Legal Issues

  1. 1 ['Whether Westlawn was entitled to include legal costs in the amount of judgment against Mrs Tagg.' "Whether Mrs Tagg should pay Westlawn's costs of the claim against her on an indemnity basis under the mortgage." "Whether Mr Tagg should be liable for Westlawn's costs of the claim against Mrs Tagg." "Whether Mrs Tagg should pay Westlawn's costs of contingent claims against Mr Tagg and Circles of Gold by a Sanderson order." 'How costs of abandoned concurrent wrongdoer defences should be treated.']

Ratio Decidendi

Westlawn was entitled to judgment against Mrs Tagg for the agreed amount excluding costs of the proceedings, because s 98 of the Civil Procedure Act 2005 (NSW) prevents recovery of proceedings costs except by court order. The mortgage did, however, require Mrs Tagg to pay Westlawn's costs of the proceedings against her on an indemnity basis because the proceedings sought to exercise rights under the mortgage. No costs order was justified against Mr Tagg for the claim against Mrs Tagg because the exceptional circumstances required for a third party costs order were not shown. No Sanderson order should be made against Mrs Tagg for the contingent claims because those claims were weak and...

Court Disposition

Judgment entered for Westlawn against Mrs Tagg; claims against Mr Tagg and Circles of Gold dismissed; Mrs Tagg's cross-claim dismissed; indemnity costs ordered against Mrs Tagg for the proceedings against her; Westlawn ordered to pay the costs of Mr Tagg and Circles of Gold.

Orders

  • ['Judgment for the plaintiff against the first defendant in the sum of $2,273,459.79.' "The plaintiff's claim against the second and third defendants be dismissed." "The first defendant's cross-claim be dismissed." "The first defendant pay the plaintiff's costs of the proceedings against the first defendant on the...