Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156

Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156

Provident Capital's legal costs and expenses incurred against Mrs Papa were recoverable under the loan security documents as additional amounts and expenses incurred in connection with default, and those amounts formed part of Mrs Papa's damages recoverable from Mr Caramanlis. Mrs Papa's own costs of defending Provident's claim and pursuing the Contracts Review Act claim were also recoverable from Mr Caramanlis because they arose naturally from his breach of contract and were reasonable mitigation costs; that entitlement could be reflected by a costs order. Mr Caramanlis was precluded from raising contributory negligence and apportionment after judgment on the appeal because he failed to...

Jurisdiction
Australia
Judgment Date
06 June 2013
Procedural Posture
Appeal Concerning Possession of Mortgaged Property, Costs, and a Cross Claim Against a Lawyer for Breach of Contract and Professional Negligence / Notices of Motion to Vary Orders After Judgment Delivered on 28 February 2013
Outcome
Mr Caramanlis' Notice of Motion filed on 14 March 2013 was dismissed with costs; costs orders made on 28 February 2013 were varied; directions were made for agreement or determination of damages against Mr Caramanlis.
Legal Topics
['mortgage Debt and Possession Proceedings' 'recovery of Legal Costs Under Loan Security Documents' 'damages for Breach of Contract to Provide Independent Legal Advice' 'contributory Negligence and Proportionate Liability on Appeal' 'finality of Litigation' 'notices of Cross Appeal and Contention']
['banking and Finance' 'contract' 'civil Procedure' 'costs' 'professional Negligence'] ['mortgage Debt and Possession Proceedings' 'recovery of Legal Costs Under Loan Security Documents' 'damages for Breach of Contract to Provide Independent Legal Advice' 'contributory Negligence and Proportionate Liability on Appeal' 'finality of Litigation' 'notices of Cross Appeal and Contention']

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Procedural Posture

Appeal Concerning Possession of Mortgaged Property, Costs, and a Cross Claim Against a Lawyer for Breach of Contract and Professional Negligence / Notices of Motion to Vary Orders After Judgment Delivered on 28 February 2013

Legal Issues

  1. 1 ["Whether Provident Capital's costs and expenses of proceeding against Mrs Papa and defending her Contracts Review Act claim were recoverable under the loan security documents." "Whether Mrs Papa's costs of defending Provident Capital's claim and pursuing relief under the Contracts Review Act were recoverable from Mr Caramanlis as damages for breach of contract." "Whether Mrs Papa's entitlement to reimbursement of costs could be reflected in a costs order rather than an award of damages." 'Whether Mr Caramanlis could raise pleaded contributory negligence and proportionate liability defences after the appeal had been heard and determined.' 'Whether Mr Caramanlis should have filed a notice of cross-appeal or notice of contention to preserve contributory negligence and apportionment defences on appeal.']

Ratio Decidendi

Provident Capital's legal costs and expenses incurred against Mrs Papa were recoverable under the loan security documents as additional amounts and expenses incurred in connection with default, and those amounts formed part of Mrs Papa's damages recoverable from Mr Caramanlis. Mrs Papa's own costs of defending Provident's claim and pursuing the Contracts Review Act claim were also recoverable from Mr Caramanlis because they arose naturally from his breach of contract and were reasonable mitigation costs; that entitlement could be reflected by a costs order. Mr Caramanlis was precluded from raising contributory negligence and apportionment after judgment on the appeal because he failed to...

Court Disposition

Mr Caramanlis' Notice of Motion filed on 14 March 2013 was dismissed with costs; costs orders made on 28 February 2013 were varied; directions were made for agreement or determination of damages against Mr Caramanlis.

Orders

  • ["Dismiss with costs Mr Caramanlis' Notice of Motion filed on 14 March 2013." "In lieu of order 5 made on 28 February 2013, order Mrs Papa to pay Provident Capital's costs, assessed on a solicitor and client basis, of its proceedings against her at first instance (including Mrs Papa's cross-claim against Provident...