Avery v Saree Holdings Ltd; Lava Ltd v Avery (No. 2) [2012] NSWSC 938

Avery v Saree Holdings Ltd; Lava Ltd v Avery (No. 2) [2012] NSWSC 938

The 13 July 2010 authority and directions were ineffective because they did not acknowledge the alleged trust relationship without qualification and would deprive Saree of recourse for costs and indemnity. Saree's three advances to Ms Avery were Moneys Owing secured by the Saree mortgage and were repayable after default under the Saree loan agreement, with default interest payable from 12 May 2006. Saree's claimed costs and interest on costs were not allowed on the evidence because Ms Avery had to be given an opportunity to exercise her statutory costs assessment rights. In the Lava proceedings, Ms Avery did not seek to be heard further on Lava's claimed orders, so orders were made for...

Jurisdiction
Australia
Judgment Date
10 August 2012
Procedural Posture
Consequential Orders and Account Within a Redemption Suit Concerning Mortgages / Second Judgment After Principal Judgment; Final Consequential Orders in the Lava Proceedings and Supplementary Findings in the Saree Proceedings
Outcome
Lava obtained further consequential orders for interest on costs and payment of its costs out of secured assets on an indemnity basis. In the Saree proceedings, the Court held that the 13 July 2010 authority and directions were ineffective, made findings as to principal and interest due under the Saree mortgage,...
Legal Topics
['mortgages' 'redemption Suit' 'taking of Accounts' 'principal and Interest Owing Under Mortgage' 'indemnity Costs' 'trustee Directions and Right of Indemnity']
['real Property' 'equity' 'costs'] ['mortgages' 'redemption Suit' 'taking of Accounts' 'principal and Interest Owing Under Mortgage' 'indemnity Costs' 'trustee Directions and Right of Indemnity']

Case Brief

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Procedural Posture

Consequential Orders and Account Within a Redemption Suit Concerning Mortgages / Second Judgment After Principal Judgment; Final Consequential Orders in the Lava Proceedings and Supplementary Findings in the Saree Proceedings

Legal Issues

  1. 1 ["Whether the 13 July 2010 authority and directions required Saree to consent to judgment in Ms Avery's favour and discharge the Saree loan agreement and Saree mortgage." 'What principal monies were advanced by Saree to Ms Avery and secured by the Saree mortgage.' 'Whether interest was payable under the Saree loan agreement and Saree mortgage, and at what rate.' "Whether Saree's claimed legal costs and interest on costs could be allowed in the account before assessment or admissible proof." "Whether orders should be made in the Lava proceedings for interest on Lava's costs and payment of costs out of assets secured by the Lava mortgage."]

Ratio Decidendi

The 13 July 2010 authority and directions were ineffective because they did not acknowledge the alleged trust relationship without qualification and would deprive Saree of recourse for costs and indemnity. Saree's three advances to Ms Avery were Moneys Owing secured by the Saree mortgage and were repayable after default under the Saree loan agreement, with default interest payable from 12 May 2006. Saree's claimed costs and interest on costs were not allowed on the evidence because Ms Avery had to be given an opportunity to exercise her statutory costs assessment rights. In the Lava proceedings, Ms Avery did not seek to be heard further on Lava's claimed orders, so orders were made for...

Court Disposition

Lava obtained further consequential orders for interest on costs and payment of its costs out of secured assets on an indemnity basis. In the Saree proceedings, the Court held that the 13 July 2010 authority and directions were ineffective, made findings as to principal and interest due under the Saree mortgage,...

Orders

  • ['In the Lava proceedings, the Defendant pay to the Plaintiff interest on its costs of the proceedings, including the costs payable under the Order of the Court on 2 April 2009, calculated in accordance with clause 2.2 of Annexure A to the Mortgage granted by the Defendant to the Plaintiff being dealing under...