SMITH v YUSEN DALY SMITH INTERNATIONAL (In Liq) [2001] NSWCA 458

SMITH v YUSEN DALY SMITH INTERNATIONAL (In Liq) [2001] NSWCA 458

The appeals were competent because Meagher JA was sitting as a Judge of the Supreme Court in the Equity Division and an appeal lay as of right under s101(1). Smith could not recover his own legal costs on a solicitor and client basis because the costs issue should have been raised in the earlier Court of Appeal proceedings and was barred by Anshun estoppel; before Meagher JA, only quantification of party and party costs was open. ANZ's legal costs were secured under the mortgage debenture and fell within the prior Court of Appeal orders, so Smith was entitled to recover the agreed amount. The bank guarantee fees were not recoverable as secured debts because Smith did not pay them and...

Jurisdiction
Australia
Judgment Date
07 December 2001
Procedural Posture
Appeal and Cross Appeal / New South Wales Court of Appeal From Decisions of Meagher JA and Hamilton J in the Supreme Court Equity Division
Outcome
Appeal in proceedings 40783 of 2000 dismissed; cross appeal allowed in part; appeal in proceedings 40185 of 2001 allowed in part; no order as to costs.
Legal Topics
['competence of Appeal' 'subrogation' 'surety Payments' 'secured Debts' 'mortgage Debenture' 'solicitor and Client Costs' 'bank Guarantee Fees' 'receiver Appointment' 'anshun Estoppel']
['civil Procedure' 'equity' 'remedies' 'costs' 'insolvency'] ['competence of Appeal' 'subrogation' 'surety Payments' 'secured Debts' 'mortgage Debenture' 'solicitor and Client Costs' 'bank Guarantee Fees' 'receiver Appointment' 'anshun Estoppel']

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Procedural Posture

Appeal and Cross Appeal / New South Wales Court of Appeal From Decisions of Meagher JA and Hamilton J in the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the appeals from the decisions of Meagher JA and Hamilton J were competent.' 'Whether Smith could recover his own legal costs on a solicitor and client basis as a debt secured under the mortgage debenture.' "Whether Smith was entitled to recover ANZ's legal costs incurred in the subrogation proceedings as costs secured under the mortgage debenture." 'Whether bank guarantee fees paid by Management Services or other corporate entities were paid as surety for YDSI so as to found an entitlement to subrogation or assignment of secured rights.' 'Whether the cross appeal concerning the validity of the appointment of the receiver should be dismissed.']

Ratio Decidendi

The appeals were competent because Meagher JA was sitting as a Judge of the Supreme Court in the Equity Division and an appeal lay as of right under s101(1). Smith could not recover his own legal costs on a solicitor and client basis because the costs issue should have been raised in the earlier Court of Appeal proceedings and was barred by Anshun estoppel; before Meagher JA, only quantification of party and party costs was open. ANZ's legal costs were secured under the mortgage debenture and fell within the prior Court of Appeal orders, so Smith was entitled to recover the agreed amount. The bank guarantee fees were not recoverable as secured debts because Smith did not pay them and...

Court Disposition

Appeal in proceedings 40783 of 2000 dismissed; cross appeal allowed in part; appeal in proceedings 40185 of 2001 allowed in part; no order as to costs.

Orders

  • ['Grant liberty to either party by notice of motion, to be served within seven days, to re-list the proceedings before one of the three members of the Court for the purpose of clarifying or moving the Court to amend the orders.' 'In Proceedings 40783 of 2000: dismiss the appeal.' 'In Proceedings 40783 of 2000: allow...