IMB Limited v Great Wall Resources Pty Limited [2013] NSWSC 1365

IMB Limited v Great Wall Resources Pty Limited [2013] NSWSC 1365

Given the respondents' repeated stays delayed the ultimate outcome and resulted in additional costs to the mortgagee and defendant, and as they acted for their own interest which coincided with the defendant's, it is appropriate to order the respondents to indemnify the defendant in respect of the plaintiff's costs relating to those applications, even though s 98 does not of itself directly create a right of indemnity.

Parties
Plaintiff: IMB Limited; Defendant/applicant: Great Wall Resources Pty Limited; Respondent: Francesco Saverio Capocchiano; Respondent: Italia Capocchiano
Jurisdiction
Australia
Judgment Date
12 September 2013
Procedural Posture
Interlocutory Application / Costs Application After Judgment and Stay Proceedings
Outcome
Indemnity order granted in favour of the defendant against the respondents subject to assessment of costs; costs of motion awarded against respondents.
Legal Topics
Costs, Stay of Execution, Indemnity, Mortgagee Powers
Civil Procedure Banking and Finance Property Law Costs Stay of Execution Indemnity Mortgagee Powers

Case Brief

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Parties

IMB Limited

Plaintiff

Great Wall Resources Pty Limited

Defendant/applicant

Francesco Saverio Capocchiano

Respondent

Italia Capocchiano

Respondent

Procedural Posture

Interlocutory Application / Costs Application After Judgment and Stay Proceedings

Legal Issues

  1. 1 Whether the court has power to order the respondents to indemnify the defendant for the plaintiff's costs associated with the stay applications under s 98 Civil Procedure Act 2005.
  2. 2 Whether such an order is appropriate where the respondents were not principal parties to the main proceedings but brought interlocutory applications.

Ratio Decidendi

Given the respondents' repeated stays delayed the ultimate outcome and resulted in additional costs to the mortgagee and defendant, and as they acted for their own interest which coincided with the defendant's, it is appropriate to order the respondents to indemnify the defendant in respect of the plaintiff's costs relating to those applications, even though s 98 does not of itself directly create a right of indemnity.

Court Disposition

Indemnity order granted in favour of the defendant against the respondents subject to assessment of costs; costs of motion awarded against respondents.

Orders

  • Each of the respondents, Francesco Saverio Capocchiano and Italia Capocchiano, are to indemnify the defendant in respect of the plaintiff's costs associated with the stay applications brought by them on and after 6 July 2011.
  • The order requiring the respondents to indemnify the defendant not take effect until the plaintiff's costs associated with the three stay applications have been agreed or otherwise assessed.