Westpac Banking Corporation v Mahabat [2016] NSWSC 102

Westpac Banking Corporation v Mahabat [2016] NSWSC 102

The $600,000 loan was not payable until sale of the land, so the claim for an immediate money judgment was misconceived, but Badi and Mahabat had disputed liability for the loan and should pay Kargarian's costs of that part. After Kargarian assigned the Westpac debt and mortgage to Prosper, his own claims relating to the $975,000 payment were doomed to fail and amendment would have wasted costs. The unexplained denial of facts later admitted engaged r 42.8, though the relevant costs were likely minimal. Balancing the parties' mixed success, the appropriate costs order was that Badi pay 50% and Mahabat pay 25% of Kargarian's costs, with Kargarian receiving no more than 50% in total.

Jurisdiction
Australia
Judgment Date
25 February 2016
Procedural Posture
Costs in Proceedings Involving Possession and Debt Claims, Guarantees, Mortgage Assignment and Cross Claims / Costs Determination After Settlement of the Substantive Proceedings
Outcome
Substantive settlement orders made and costs apportioned against Badi Mahabat and Mahabat Mahabat.
Legal Topics
['costs After Settlement' 'notice to Admit Facts' 'indemnity Costs' 'amendment of Pleadings' 'contribution and Indemnity Between Guarantors' 'assignment of Debt and Mortgage']
['civil Procedure' 'costs' 'guarantees' 'mortgages' 'debt Recovery'] ['costs After Settlement' 'notice to Admit Facts' 'indemnity Costs' 'amendment of Pleadings' 'contribution and Indemnity Between Guarantors' 'assignment of Debt and Mortgage']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs in Proceedings Involving Possession and Debt Claims, Guarantees, Mortgage Assignment and Cross Claims / Costs Determination After Settlement of the Substantive Proceedings

Legal Issues

  1. 1 ["Whether Badi Mahabat and Mahabat Mahabat should pay Rouhallah Kargarian's costs after the substantive cross-claims settled." 'Whether costs thrown away by amendments joining Prosper Property Group Pty Ltd and pleading the assignment should be borne by the cross-claimants.' 'Whether rule 42.8 of the Uniform Civil Procedure Rules 2005 (NSW) required indemnity costs for facts denied in a Notice to Admit Facts and later admitted.' 'How costs should be apportioned where different issues had different outcomes and some claims as pleaded were misconceived.']

Ratio Decidendi

The $600,000 loan was not payable until sale of the land, so the claim for an immediate money judgment was misconceived, but Badi and Mahabat had disputed liability for the loan and should pay Kargarian's costs of that part. After Kargarian assigned the Westpac debt and mortgage to Prosper, his own claims relating to the $975,000 payment were doomed to fail and amendment would have wasted costs. The unexplained denial of facts later admitted engaged r 42.8, though the relevant costs were likely minimal. Balancing the parties' mixed success, the appropriate costs order was that Badi pay 50% and Mahabat pay 25% of Kargarian's costs, with Kargarian receiving no more than 50% in total.

Court Disposition

Substantive settlement orders made and costs apportioned against Badi Mahabat and Mahabat Mahabat.

Orders

  • ['Prosper Property Group Pty Ltd be joined as the Second Cross Claimant to the Second Cross-Claim.' 'The Cross Claimants have leave to file in Court the Second Further Amended Statement of Cross Claim in the Second Cross Claim.' 'The Court declares that the entitlement of Prosper Property Group Pty Limited as...