PERPETUAL TRUSTEES VICTORIA LIMITED v CIPRI & ANOR [2009] NSWSC 335

PERPETUAL TRUSTEES VICTORIA LIMITED v CIPRI & ANOR [2009] NSWSC 335

Perpetual was not entitled to indemnity costs because its 7 November 2007 letter lacked sufficient specificity, its only concessions concerned costs and enforcement expenses whose value could not be assessed in the context of the whole proceedings, and the Court was not satisfied that it was a true offer of compromise; in any event, Mr Cipri's refusal was not unreasonable given that he was an innocent victim of fraud, the Torrens Assurance Fund claim was then unresolved, and accepting the offer could have left him without his home and without assured compensation. Mr Cipri was entitled to costs of the second cross-claim because the Registrar General did not oppose that order. Mr Cipri was...

Jurisdiction
Australia
Judgment Date
30 April 2009
Procedural Posture
Possession Proceedings and Cross Claims Arising From a Forged Mortgage / Judgment on Application for Costs After Principal Judgment
Outcome
Possession and monetary relief were ordered for Perpetual against the defendants as specified; Perpetual's claim for indemnity costs against Mr Cipri was refused; the first cross-claim was dismissed; Mr Cipri was awarded compensation from the Torrens Assurance Fund and costs of the second cross-claim; the Registrar...
Legal Topics
['calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'torrens Assurance Fund Compensation' 'bullock Order' 'sanderson Order' 'forged Mortgage' 'possession of Land']
['costs' 'civil Procedure' 'real Property' 'mortgage Law'] ['calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'torrens Assurance Fund Compensation' 'bullock Order' 'sanderson Order' 'forged Mortgage' 'possession of Land']

Case Brief

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Procedural Posture

Possession Proceedings and Cross Claims Arising From a Forged Mortgage / Judgment on Application for Costs After Principal Judgment

Legal Issues

  1. 1 ['Whether Perpetual was entitled to indemnity costs from 8 November 2007 based on its letter of 7 November 2007.' 'Whether the letter of 7 November 2007 was a genuine offer of compromise and whether Mr Cipri acted unreasonably by not accepting it.' "Whether the Registrar General should pay Mr Cipri's costs of the second cross-claim." 'Whether Mr Cipri was entitled to an indemnity from the Registrar General in respect of costs payable to Perpetual, including by reference to s.129 of the Real Property Act 1900 or Bullock/Sanderson principles.']

Ratio Decidendi

Perpetual was not entitled to indemnity costs because its 7 November 2007 letter lacked sufficient specificity, its only concessions concerned costs and enforcement expenses whose value could not be assessed in the context of the whole proceedings, and the Court was not satisfied that it was a true offer of compromise; in any event, Mr Cipri's refusal was not unreasonable given that he was an innocent victim of fraud, the Torrens Assurance Fund claim was then unresolved, and accepting the offer could have left him without his home and without assured compensation. Mr Cipri was entitled to costs of the second cross-claim because the Registrar General did not oppose that order. Mr Cipri was...

Court Disposition

Possession and monetary relief were ordered for Perpetual against the defendants as specified; Perpetual's claim for indemnity costs against Mr Cipri was refused; the first cross-claim was dismissed; Mr Cipri was awarded compensation from the Torrens Assurance Fund and costs of the second cross-claim; the Registrar...

Orders

  • ['The first and second defendants give the plaintiff possession of the whole of the land comprised in Certificate of Title, Folio Identifier Lot 120 in Deposited Plan 255678 and known as 48 Beachworth Avenue, Greystanes, New South Wales, 2145.' 'A writ of possession issue, such writ not to issue before a period of...