Kirsty Amanda Mary Louise Cadogan v Kevin Andrew Cadogan & Ors

Kirsty Amanda Mary Louise Cadogan v Kevin Andrew Cadogan & Ors

The costs of the claim cannot be treated as costs and expenses of sale and paid in priority to the mortgage; they must be added to Kirsty's charge and paid only if there is sufficient equity after the mortgage and costs and expenses of sale. Disputed sale costs (insurance premiums, bailiffs & locksmiths, clearance costs) are not costs and expenses of sale recoverable in priority to the mortgage but may be added to Kirsty's charge and recovered against Kevin. Delay by Bank of Scotland in applying to vary the Order for Sale was not material or prejudicial in the circumstances.

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
11 October 2024
Procedural Posture
Civil / Judgment on Applications to Vary Order for Sale and Declarations on Sale Costs
Outcome
Application by Bank of Scotland to vary Order for Sale allowed; Sale Costs Application refused.
Legal Topics
Order for Sale, Mortgage Priorities, Charging Orders, Costs and Expenses of Sale, Variation of Orders, Equitable Charges
Property Law Trusts and Probate Civil Procedure Order for Sale Mortgage Priorities Charging Orders Costs and Expenses of Sale Variation of Orders +1 more

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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

Civil / Judgment on Applications to Vary Order for Sale and Declarations on Sale 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 certain disputed costs (insurance premiums, bailiffs & locksmiths, clearance costs) are recoverable as costs and expenses of sale in priority to the mortgage
  3. 3 Whether delay by Bank of Scotland in applying to vary the Order for Sale justifies refusal of the application

Ratio Decidendi

The costs of the claim cannot be treated as costs and expenses of sale and paid in priority to the mortgage; they must be added to Kirsty's charge and paid only if there is sufficient equity after the mortgage and costs and expenses of sale. Disputed sale costs (insurance premiums, bailiffs & locksmiths, clearance costs) are not costs and expenses of sale recoverable in priority to the mortgage but may be added to Kirsty's charge and recovered against Kevin. Delay by Bank of Scotland in applying to vary the Order for Sale was not material or prejudicial in the circumstances.

Court Disposition

Application by Bank of Scotland to vary Order for Sale allowed; Sale Costs Application refused.

Orders

  • Order for Sale varied to remove the words 'including the costs of the claim' from paragraph 9.
  • Costs of the claim to be added to Kirsty's charge as against Kevin, not paid in priority to the mortgage.