Bendigo and Adelaide Bank Ltd v Karamihos (No 2) [2014] NSWCA 76

Bendigo and Adelaide Bank Ltd v Karamihos (No 2) [2014] NSWCA 76

The judgment amount should include the $48,731.86 in enforcement expenses incurred to the date of the first instance hearing because they were pleaded and proved, but should not include the $300,925.39 incurred after commencement of that hearing because the Karamihoses had not yet had the opportunity to exercise their statutory rights concerning assessment of legal costs. Once judgment is entered, interest accrues under s 101 of the Civil Procedure Act 2005 (NSW), not under the Mortgage.

Jurisdiction
Australia
Judgment Date
25 March 2014
Procedural Posture
Consequential Orders / On the Papers Following Judgment on 14 February 2014, Concerning the Final Orders and the Amount of Judgment to Be Entered
Outcome
Final consequential orders were made in favour of the Bank in the Common Law proceedings, judgment was entered for the defendant in the Equity proceedings, and the respondents were ordered to pay the appellant's costs of the appeal.
Legal Topics
['consequential Orders' 'enforcement Expenses Payable Under Mortgage' 'judgment Amount' 'assessment of Legal Costs' 'judgment Interest' 'possession of Land']
['practice and Procedure' 'mortgage Enforcement' 'costs' 'civil Procedure'] ['consequential Orders' 'enforcement Expenses Payable Under Mortgage' 'judgment Amount' 'assessment of Legal Costs' 'judgment Interest' 'possession of Land']

Case Brief

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Procedural Posture

Consequential Orders / On the Papers Following Judgment on 14 February 2014, Concerning the Final Orders and the Amount of Judgment to Be Entered

Legal Issues

  1. 1 ['Whether enforcement expenses claimed by the Bank under the Mortgage should be included in the judgment amount' 'Whether enforcement expenses incurred after commencement of the hearing at first instance should be excluded so the Karamihoses could seek assessment of legal costs under s 350 of the Legal Profession Act 2004 (NSW)' 'Whether interest on the judgment amount should accrue at the contractual rate under the Mortgage or under s 101 of the Civil Procedure Act 2005 (NSW)']

Ratio Decidendi

The judgment amount should include the $48,731.86 in enforcement expenses incurred to the date of the first instance hearing because they were pleaded and proved, but should not include the $300,925.39 incurred after commencement of that hearing because the Karamihoses had not yet had the opportunity to exercise their statutory rights concerning assessment of legal costs. Once judgment is entered, interest accrues under s 101 of the Civil Procedure Act 2005 (NSW), not under the Mortgage.

Court Disposition

Final consequential orders were made in favour of the Bank in the Common Law proceedings, judgment was entered for the defendant in the Equity proceedings, and the respondents were ordered to pay the appellant's costs of the appeal.

Orders

  • ['In proceedings 2009/14393 in the Common Law Division, order that the defendants give possession to the plaintiff of the whole of the land comprised in folio identifier 4966/752015.' 'In proceedings 2009/14393 in the Common Law Division, grant leave to issue a writ for possession.' 'In proceedings 2009/14393 in the...