JKAM Investments Pty Ltd v Damien (No. 2) [2022] NSWSC 763

Supreme Court New South Wales

Medium Neutral Citation: JKAM Investments Pty Ltd v Damien (No. 2) [2022] NSWSC 763 Hearing dates: 6 December 2021 Date of orders: 10 June 2022 Decision date: 10 June 2022 Jurisdiction: Equity Before: Slattery J Decision: See paragraph [121]. Catchwords: DAMAGES – plaintiff partially successful in claims for misleading and deceptive conduct and in a claim for indemnity under a mortgage during a hearing on issues relating to liability – damages hearing then takes place – plaintiff elects to pursue indemnity based on the mortgage and abandons an inconsistent remedy for misleading and deceptive conduct that would otherwise result in the mortgage being set aside – whether all the plaintiff's damages were caused by the misleading and deceptive conduct of the defendant – what particular legal costs and expenses are recoverable under the indemnity clause in the mortgage. COSTS – plaintiff successful on some but not all issues in the principal proceedings – what costs orders are appropriate in the circumstances – what costs order should be made in respect of the damages hearing. CIVIL PROCVEDURE – damages hearing after hearing on liability – during damages hearing plaintiff advances extensive claims for indemnity on a mortgage in respect to a range of legal costs and expenses which have not been the subject of detailed pleadings and were not the subject of specific determination during the liability hearing – whether the damages hearing is an appropriate vehicle for the determination of these claims. Legislation Cited: Civil Procedure Act 2005, s 98(4)(c) Cases Cited: Australian & New Zealand Banking Group Ltd v Pollard [2012] SASC 133 Credland v Potter (1874) LR 10 Ch App 8 JKAM Investments Pty Ltd ACN 159 084 018 v Damien [2021] NSWSC 70 Deeley v Loyd's Bank (No. 2) (1909) 53 Sol Jo 419 EMI Records v Wallace [1988] 2 All ER 980 Mead v Watson [2005] NSWCA 133 Overton Investments Pty Ltd v Cuzeno RVM Pty Ltd [2003] NSWCA 27 Project Research Pty Ltd v Permanent Trustee of Australia Ltd (1990) 5 BPR 11 Pearce v Watkins (1852) 64 ER 1132 Beddoe, In re; Downs v Cottam [1893] 1 Ch 547 Kyabram Property Investments Pty Ltd v Murray [2005] NSWSC 1202 Texts Cited: ELG Tyler, PW Young and CE Croft, Fisher and Lightwood's Law of Mortgages (3rd ed, 2014, LexisNexis Butterworths) Category: Costs Parties: Plaintiff/Cross-Defendant: JKAM Investments Pty Ltd Defendant/Cross-Claimant: Karl Damien Representation: Counsel: Plaintiff/Cross-Defendant: L. Katsinas Defendant/Cross-Claimant: C. Stomo