Elders Trustee & Executor Co. Ltd v. E.G. Reeves Pty Ltd & Ors [1988] FCA 32

Elders Trustee & Executor Co. Ltd v. E.G. Reeves Pty Ltd & Ors [1988] FCA 32

The first respondent is entitled under clause 5 of the mortgage memorandum to an account of costs and expenses incurred in these proceedings, to be assessed between solicitor and client on a common fund basis, provided only reasonably incurred items are included. The applicant is liable for the principal sum and for such further costs as may be found upon the taking of the account.

Parties
Applicant: Elders Trustee & Executor Company Limited; First Respondent: E.G. Reeves Pty Limited; Second Respondent: Edward George Reeves; Third Respondent: Daphne Joan Reeves
Jurisdiction
Australia
Judgment Date
12 February 1988
Procedural Posture
Cross Claim and Principal Proceedings / Judgment and Orders, Reference to Registrar for Costs Account
Outcome
Judgment for first respondent on cross-claim for specified sum; applicant to pay costs to second and third respondents on party and party basis; Registrar to take account of costs and expenses to determine further sums.
Legal Topics
Costs, Mortgages, Solicitor and Client Costs
Practice and Procedure Costs Mortgages Solicitor and Client Costs

Case Brief

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Parties

Elders Trustee & Executor Company Limited

Applicant

E.G. Reeves Pty Limited

First Respondent

Edward George Reeves

Second Respondent

Daphne Joan Reeves

Third Respondent

Procedural Posture

Cross Claim and Principal Proceedings / Judgment and Orders, Reference to Registrar for Costs Account

Legal Issues

  1. 1 Whether costs incurred by the first respondent are recoverable on a solicitor and client basis under clause 5 of the standard mortgage memorandum.
  2. 2 Construction and operation of express costs covenant in a mortgage deed.
  3. 3 Appropriate scale and basis for taxation of recoverable costs.

Ratio Decidendi

The first respondent is entitled under clause 5 of the mortgage memorandum to an account of costs and expenses incurred in these proceedings, to be assessed between solicitor and client on a common fund basis, provided only reasonably incurred items are included. The applicant is liable for the principal sum and for such further costs as may be found upon the taking of the account.

Court Disposition

Judgment for first respondent on cross-claim for specified sum; applicant to pay costs to second and third respondents on party and party basis; Registrar to take account of costs and expenses to determine further sums.

Orders

  • First respondent have judgment on cross-claim for $697,902.06.
  • First respondent may seek further judgment for sums found due upon account.