Franks v Moribund Pty Limited (formerly Equitiloan Securities Pty Ltd) (in liquidation) [2011] NSWCA 216

Franks v Moribund Pty Limited (formerly Equitiloan Securities Pty Ltd) (in liquidation) [2011] NSWCA 216

The terms of the undertaking, construed in their proper context, do not extend to requiring Equititrust to pay the appellant's costs and expenses incurred in the proceedings to recover an overpayment. The undertaking was only to pay any amount found by a court to have been paid in excess of what was due under the mortgage, not for costs incurred in obtaining such a finding. The primary judge was correct in his construction, and the appeal is dismissed with costs.

Parties
Appellant: Phillip Maurice Franks; First Respondent: Moribund Pty Ltd (formerly Equitiloan Securities Pty Ltd) (in liquidation); Second Respondent: Equititrust Limited (formerly Equitiloan Limited)
Jurisdiction
Australia
Judgment Date
20 July 2011
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Undertaking to the Court, Construction of Undertaking, Enforcement of Undertakings, Costs of Proceedings
Civil Procedure Undertaking to the Court Construction of Undertaking Enforcement of Undertakings Costs of Proceedings

Case Brief

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Parties

Phillip Maurice Franks

Appellant

Moribund Pty Ltd (formerly Equitiloan Securities Pty Ltd) (in liquidation)

First Respondent

Equititrust Limited (formerly Equitiloan Limited)

Second Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the undertaking given by Equititrust to the Court on 13 November 2000 extends to cover the appellant's costs and expenses incurred in recovering any amount found to have been overpaid under the mortgage.
  2. 2 Whether the trial judge erred in his construction of the undertaking by failing to take into account surrounding circumstances or by considering irrelevant subsequent events.

Ratio Decidendi

The terms of the undertaking, construed in their proper context, do not extend to requiring Equititrust to pay the appellant's costs and expenses incurred in the proceedings to recover an overpayment. The undertaking was only to pay any amount found by a court to have been paid in excess of what was due under the mortgage, not for costs incurred in obtaining such a finding. The primary judge was correct in his construction, and the appeal is dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.