Secure Funding Pty Limited v Stark Secure Funding Pty Limited v Conway [2013] NSWSC 1536

Secure Funding Pty Limited v Stark Secure Funding Pty Limited v Conway [2013] NSWSC 1536

Although the mortgage costs clauses would otherwise support an indemnity costs order, Secure's claimed contractual entitlement depended on mortgages that the defendants were seeking to put in issue in pending applications to set aside the default judgments and challenge enforceability. For that reason indemnity costs should not presently be ordered. However, Secure succeeded in resisting the application before the Court, and no reason was shown to depart from the ordinary rule that costs follow the event, so the defendants must pay Secure's costs on the ordinary basis.

Jurisdiction
Australia
Judgment Date
22 October 2013
Procedural Posture
Costs Application in Equity Division Corporations List / Determination of Costs Following Dismissal of Applications for Stay of Possession Orders and to Set Aside Default Judgment
Outcome
Costs ordered against Mr and Mrs Stark and Mr Conway on the ordinary basis, with liberty for Secure to apply on notice.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'contractual Entitlement to Costs Under Mortgage' 'costs Follow the Event' 'stay of Possession Proceedings' 'default Judgment']
['civil Procedure' 'costs' 'corporations List'] ['indemnity Costs' 'ordinary Basis Costs' 'contractual Entitlement to Costs Under Mortgage' 'costs Follow the Event' 'stay of Possession Proceedings' 'default Judgment']

Case Brief

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Procedural Posture

Costs Application in Equity Division Corporations List / Determination of Costs Following Dismissal of Applications for Stay of Possession Orders and to Set Aside Default Judgment

Legal Issues

  1. 1 ["Whether Secure's costs of the defendants' application for a stay of possession should be ordered on an indemnity basis by reason of costs clauses in the mortgages." 'Whether the pending applications to set aside default judgments and challenge the enforceability of the loans and mortgages justified refusing or deferring indemnity costs.' 'Whether Secure should receive costs on the ordinary basis because it successfully resisted the stay application.']

Ratio Decidendi

Although the mortgage costs clauses would otherwise support an indemnity costs order, Secure's claimed contractual entitlement depended on mortgages that the defendants were seeking to put in issue in pending applications to set aside the default judgments and challenge enforceability. For that reason indemnity costs should not presently be ordered. However, Secure succeeded in resisting the application before the Court, and no reason was shown to depart from the ordinary rule that costs follow the event, so the defendants must pay Secure's costs on the ordinary basis.

Court Disposition

Costs ordered against Mr and Mrs Stark and Mr Conway on the ordinary basis, with liberty for Secure to apply on notice.

Orders

  • ['Mr and Mrs Stark and Mr Conway pay the costs of and incidental to the respective applications determined in my judgment delivered on 5 September 2013 on an ordinary basis.' 'The Plaintiff have liberty to apply on 3 days notice specifying the relief sought.']