Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd (No 3) [2023] NSWSC 720

Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd (No 3) [2023] NSWSC 720

The Court declined to vary the earlier no-order-as-to-costs position. The finance documents did not plainly and unambiguously confer an entitlement to indemnity costs. The Lender acted in its capacity as mortgagee in defending the plaintiffs' claims and advancing the cross-claim, but its cross-claim proved useless because it failed to prove the debt with a conforming Dobbs certificate, making at least the cross-claim costs unreasonable in the relevant sense. The plaintiffs nevertheless failed on major claims of duress and unconscionable conduct and succeeded only partially and somewhat academically under the Contracts Review Act. Considered as a whole, the parties had roughly equal...

Jurisdiction
Australia
Judgment Date
26 June 2023
Procedural Posture
Costs in Equity Commercial List Proceedings Concerning Mortgage Finance Documents, Claims Under the Contracts Review Act, and a Lender's Cross Claim / Post Judgment Costs Determination on the Papers After Primary Judgment and Second Judgment
Outcome
No orders made.
Legal Topics
["mortgagee's Entitlement to Costs" 'ucpr R 42.25' 'indemnity Costs' 'costs Following the Event' 'unreasonable Conduct by Mortgagee' 'invalid Dobbs Certificate' 'costs of Claim and Cross Claim']
['costs' 'equity' 'mortgage Law' 'contracts Review Act'] ["mortgagee's Entitlement to Costs" 'ucpr R 42.25' 'indemnity Costs' 'costs Following the Event' 'unreasonable Conduct by Mortgagee' 'invalid Dobbs Certificate' 'costs of Claim and Cross Claim']

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 Commercial List Proceedings Concerning Mortgage Finance Documents, Claims Under the Contracts Review Act, and a Lender's Cross Claim / Post Judgment Costs Determination on the Papers After Primary Judgment and Second Judgment

Legal Issues

  1. 1 ["Whether the plaintiffs should receive their costs because they had some success on the Contracts Review Act claim and defeated the Lender's cross-claim." 'Whether the Lender, as mortgagee, was entitled to have its costs paid out of the mortgaged property on an indemnity basis, or alternatively to 80% of its costs.' 'Whether the finance documents plainly and unambiguously entitled the Lender to indemnity costs.' 'Whether the Lender acted unreasonably in the relevant sense for the purposes of UCPR r 42.25 or the general law by failing to prove its debt with a valid Dobbs certificate.' "Whether the existing no-order-as-to-costs disposition should be varied in light of the parties' respective success and failure."]

Ratio Decidendi

The Court declined to vary the earlier no-order-as-to-costs position. The finance documents did not plainly and unambiguously confer an entitlement to indemnity costs. The Lender acted in its capacity as mortgagee in defending the plaintiffs' claims and advancing the cross-claim, but its cross-claim proved useless because it failed to prove the debt with a conforming Dobbs certificate, making at least the cross-claim costs unreasonable in the relevant sense. The plaintiffs nevertheless failed on major claims of duress and unconscionable conduct and succeeded only partially and somewhat academically under the Contracts Review Act. Considered as a whole, the parties had roughly equal...

Court Disposition

No orders made.

Orders

  • ['No further orders were made.' 'The earlier no-order-as-to-costs position was not varied.']