JNN Investments Pty Ltd v Francis (No 2) [2022] NSWSC 1349

JNN Investments Pty Ltd v Francis (No 2) [2022] NSWSC 1349

The mortgagee is entitled to its costs on an indemnity basis due to the express provision in the mortgage and its overall success, but the costs should be reduced by 20% to reflect the defendant's success on the set-off issue, which the mortgagee unreasonably resisted; interest accrues from the date of each item of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 October 2022
Procedural Posture
Costs Order Following Principal Judgment / Post Judgment (costs Determination)
Outcome
Defendant to pay 80% of the plaintiff's costs on an indemnity basis.
Legal Topics
['costs' 'mortgages' 'apportionment of Costs' 'indemnity Costs']
['civil Procedure'] ['costs' 'mortgages' 'apportionment of Costs' 'indemnity Costs']

Source-derived case record

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Procedural Posture

Costs Order Following Principal Judgment / Post Judgment (costs Determination)

Legal Issues

  1. 1 ['From what date should interest on expenses claimed by the mortgagee accrue?' 'What apportionment of costs is appropriate where the mortgagor was partially successful on a cross-claim against the mortgagee?' 'Is the mortgagee entitled to full indemnity costs in circumstances of partial success and unreasonable resistance of the cross-claim?']

Ratio Decidendi

The mortgagee is entitled to its costs on an indemnity basis due to the express provision in the mortgage and its overall success, but the costs should be reduced by 20% to reflect the defendant's success on the set-off issue, which the mortgagee unreasonably resisted; interest accrues from the date of each item of expenditure, not the mortgage date.

Court Disposition

Defendant to pay 80% of the plaintiff's costs on an indemnity basis.

Orders

  • ["The defendant is to pay 80% of the plaintiff's costs on an indemnity basis."]