Permanent Custodians Ltd v Nadrak Pty Ltd [1996] NSWCA 426

Permanent Custodians Ltd v Nadrak Pty Ltd [1996] NSWCA 426

The appeal in relation to penalty interest failed because, irrespective of waiver arguments, there was an alternative unchallenged finding of estoppel; the costs order was an exercise of discretion based on unreasonable conduct by the appellant, and there were no grounds to interfere. The cross-appeal for damages...

Source-derived case information.

Parties
Appellant: Permanent Custodians Ltd; Respondent: Nadrak Pty Ltd; Respondent: Kendan (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
06 November 1996
Procedural Posture
Appeal / Judgment
Outcome
Both appeal and cross-appeal dismissed with costs.
Legal Topics
Waiver of Interest, Estoppel, Costs Discretion, Discharge of Mortgage, Damages for Delayed Discharge
Property Law Mortgage Law Civil Procedure Waiver of Interest Estoppel Costs Discretion Discharge of Mortgage Damages for Delayed Discharge

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Parties

Permanent Custodians Ltd

Appellant

Nadrak Pty Ltd

Respondent

Kendan (NSW) Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether there was an effective waiver or estoppel precluding the recovery of penalty interest under the mortgage
  2. 2 Whether the mortgagee's conduct warranted an order for indemnity costs against it under Pt 52 r 65
  3. 3 Whether the mortgagee was liable in damages for delay in discharging the mortgage

Ratio Decidendi

The appeal in relation to penalty interest failed because, irrespective of waiver arguments, there was an alternative unchallenged finding of estoppel; the costs order was an exercise of discretion based on unreasonable conduct by the appellant, and there were no grounds to interfere. The cross-appeal for damages failed because loss was not caused by any assumed breach, as the mortgagors had refused to pay the correct amount.

Court Disposition

Both appeal and cross-appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • Cross-appeal dismissed with costs.