Cadogan v Cadogan & Ors [2024] EWHC 165 (Ch) (02 February 2024)

Cadogan v Cadogan & Ors [2024] EWHC 165 (Ch) (02 February 2024)

The Order for Sale should be varied to remove the words 'including the costs of the claim' from the provision prioritising costs and expenses of sale, as the costs of the claim are not properly to be treated as costs and expenses of sale and paid in priority to the mortgage. The costs of the claim should be added to Kirsty's charge and recoverable from Kevin in the same priority as her charge. The disputed items (insurance premiums, bailiffs & locksmiths, clearance costs) are not to be treated as costs and expenses of sale. Landlord/freeholder costs including service charges and ground rent are costs and expenses of sale, but no order is needed as between Kirsty and BOS.

Citation
[2024] EWHC 165 (Ch)
Parties
Claimant: Kirsty Amanda Mary Louise Cadogan; First Defendant: Kevin Andrew Cadogan; Second Defendant: Persons Unknown; Third Defendant: Mr Daniel Dacres; Fourth Defendant: Bank of Scotland PLC
Jurisdiction
England and Wales
Judgment Date
02 February 2024
Procedural Posture
Order for Sale and Related Applications / Post Trial Judgment on Applications to Vary Order and Costs
Outcome
Application by Bank of Scotland PLC to vary Order for Sale succeeds; Sale Costs Application succeeds in part.
Legal Topics
Order for Sale, Mortgage Priority, Charging Orders, Costs and Expenses of Sale, Variation of Orders
Property Law Trusts and Probate Civil Procedure Order for Sale Mortgage Priority Charging Orders Costs and Expenses of Sale Variation of Orders

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Parties

Kirsty Amanda Mary Louise Cadogan

Claimant

Kevin Andrew Cadogan

First Defendant

Persons Unknown

Second Defendant

Mr Daniel Dacres

Third Defendant

Bank of Scotland PLC

Fourth Defendant

Procedural Posture

Order for Sale and Related Applications / Post Trial Judgment on Applications to Vary Order and Costs

Legal Issues

  1. 1 Whether the costs of the claim should be treated as costs and expenses of sale and paid in priority to the mortgage
  2. 2 Whether the Order for Sale should be varied to remove the modification prioritising costs of the claim
  3. 3 Whether certain disputed costs (insurance premiums, bailiffs & locksmiths, clearance costs) should be treated as costs and expenses of sale

Ratio Decidendi

The Order for Sale should be varied to remove the words 'including the costs of the claim' from the provision prioritising costs and expenses of sale, as the costs of the claim are not properly to be treated as costs and expenses of sale and paid in priority to the mortgage. The costs of the claim should be added to Kirsty's charge and recoverable from Kevin in the same priority as her charge. The disputed items (insurance premiums, bailiffs & locksmiths, clearance costs) are not to be treated as costs and expenses of sale. Landlord/freeholder costs including service charges and ground rent are costs and expenses of sale, but no order is needed as between Kirsty and BOS.

Court Disposition

Application by Bank of Scotland PLC to vary Order for Sale succeeds; Sale Costs Application succeeds in part.

Orders

  • Order for Sale varied to remove 'including the costs of the claim' from paragraph 9.
  • Costs of the claim to be added to Kirsty's charge as against Kevin.