KYABRAM PROPERTY INVESTMENTS PTY. LIMITED & ANOR. v. MURRAY & ANOR. MURRAY & ANOR. v. KYABRAM PROPERTY INVESTMENTS PTY. LIMITED & ANOR. [2005] NSWCA 87

KYABRAM PROPERTY INVESTMENTS PTY. LIMITED & ANOR. v. MURRAY & ANOR. MURRAY & ANOR. v. KYABRAM PROPERTY INVESTMENTS PTY. LIMITED & ANOR. [2005] NSWCA 87

Although clause 14 gave a contractual entitlement to solicitor and own client costs, the Court exercised its costs discretion to award only party/party costs because Kyabram and Banksia had not pleaded reliance on the contractual costs entitlement and the Murrays were entitled to know the full claim they faced. Clause 14 also did not naturally extend to the costs of defending the cross-claim alleging that the mortgage was unconscionable or unjust, so cross-claim costs were not recoverable on the solicitor and own client basis.

Jurisdiction
Australia
Judgment Date
24 March 2005
Procedural Posture
Costs Appeal Concerning Mortgage Enforcement Proceedings and Cross Claim / Court of Appeal, on Papers
Outcome
Costs orders varied; Kyabram and Banksia were awarded costs on a party/party basis, and the indemnity costs order in favour of Banksia was set aside.
Legal Topics
["court's Discretion as to Costs" "mortgagee's Contractual Entitlement to Solicitor and Own Client Costs" 'pleading of Contractual Costs Entitlement' 'costs of Defending Cross Claim' 'contracts Review Act 1980 (nsw) Cross Claim']
['costs' 'mortgage Law' 'civil Procedure' 'contracts'] ["court's Discretion as to Costs" "mortgagee's Contractual Entitlement to Solicitor and Own Client Costs" 'pleading of Contractual Costs Entitlement' 'costs of Defending Cross Claim' 'contracts Review Act 1980 (nsw) Cross Claim']

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Procedural Posture

Costs Appeal Concerning Mortgage Enforcement Proceedings and Cross Claim / Court of Appeal, on Papers

Legal Issues

  1. 1 ['Whether Kyabram and Banksia were entitled under clause 14 of their mortgages to costs on a solicitor and own client basis rather than the ordinary party/party basis.' "Whether the Court's discretion as to costs should be exercised to reflect a contractual mortgage costs clause where the pleadings only sought an order for costs in conventional terms." "Whether clause 14 of the mortgage extended to the costs of defending the Murrays' cross-claim alleging unconscionability or unjustness under s.7 of the Contracts Review Act 1980."]

Ratio Decidendi

Although clause 14 gave a contractual entitlement to solicitor and own client costs, the Court exercised its costs discretion to award only party/party costs because Kyabram and Banksia had not pleaded reliance on the contractual costs entitlement and the Murrays were entitled to know the full claim they faced. Clause 14 also did not naturally extend to the costs of defending the cross-claim alleging that the mortgage was unconscionable or unjust, so cross-claim costs were not recoverable on the solicitor and own client basis.

Court Disposition

Costs orders varied; Kyabram and Banksia were awarded costs on a party/party basis, and the indemnity costs order in favour of Banksia was set aside.

Orders

  • ['Appeal 40495/04: The first respondent, Wendy Jill Murray, is to pay the costs of the appellant, Kyabram Investments Pty. Limited, of the proceedings at first instance on the Statement of Claim up until 7 August 2002.' 'Appeal 40495/04: The respondents, Wendy Jill Murray and Robert Ormiston Murray, are to pay the...