Ricardo v Svir [2001] NSWSC 953

Reported Decision : (2002) NSW ConvR 56-005

New South Wales Supreme Court

CITATION : Ricardo v Svir [2001] NSWSC 953 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12661 of 1999 HEARING DATE(S) : 3 October 2001 JUDGMENT DATE : 26 October 2001

Ricardo Pty Limited (Plaintiff) PARTIES : v Iole Svir (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Supreme Court (Assistant Registrar) JURISDICTION : LOWER COURT 12661 of 1999 FILE NUMBER(S) : LOWER COURT Assistant Registrar Howe JUDICIAL OFFICER :

COUNSEL : Mr M W Young (Plaintiff) Mr R Freeman (Defendant) SOLICITORS : R L Kremnizer & Co (Plaintiff) Daniel Svir (Defendant) CATCHWORDS : Costs of mortgagee - powers of the court - entitlement to order - unreasonable conduct - otherwise order - onus. Real Property Act 1900, s 57 (2) (b). LEGISLATION CITED : Supreme Court Act 1970, s 76. Supreme Court Rules 1970, Pt 52 r 65, Pt 52A r 4, r 42. CASES CITED : N/A DECISION : See Paragraph 27.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12661 OF 1999

MASTER MALPASS

FRIDAY 26 OCTOBER 2001 Ricardo Pty Limited v Iole Svir

Judgment 1 Master: These proceedings arose out of a mortgage dated 3 March 1998. Under the mortgage, the defendant was required to make monthly interest payments. The principal sum was repayable on 3 March 2000. 2 The plaintiff as the mortgagee filed a Statement of Claim on 2 November 1999. In that process, it sought both possession of the mortgaged property and a monetary judgment for principal and interest. 3 In paragraph 6 of the process, the plaintiff alleged default in relation to some seventeen monthly instalments during a period from 3 February 1999 to 3 October 1999. In paragraph 7, the plaintiff alleged service on or about 21 June 1999 of a notice pursuant to s 57 (2) (b) of the Real Property Act 1900. In paragraph 8, it is alleged that the defendant had paid some moneys since the issuing of the notice but continued to be in default. A verifying affidavit was sworn by Mr Hill (a director of the plaintiff). 4 Subsequently, the defendant filed a Defence and Cross-Claim. It put in issue default and alleged compliance with the statutory notice. 5 In the course of the proceedings, the plaintiff brought two Notices of Motion for summary judgment. The first was filed on 21 January 2000. The second was filed on 12 May 2000. 6 The mortgage was discharged on 23 May 2000. Thereafter, although the defendant sought to have the proceedings dismissed, the proceedings continued on foot until 23 April 2001 (inter alia they were transferred to the Possession List, a status hearing was appointed and there were a number of court listings requiring appearance by the parties). 7 The defendant had to bring a Notice of Motion to finalise the proceedings. It came before the court on 23 April 2001. On that day, by consent, the proceedings were dismissed. 8 Apart from seeking a dismissal of the proceedings, the Notice of Motion sought relief in relation to questions of costs. The costs issues were heard on 25 June 2001 before Assistant Registrar Howe. His reasons for decision were delivered on 6 July 2001. On that day, he made the following orders:- "1. The plaintiff is to pay the defendant's costs of the proceedings. 2. The plaintiff is to pay the defendant's costs of the notice of motion of 16 February 2001." 9 On 24 July 2001, the plaintiff filed a further Notice of Motion. It sought a review of the decision of the Assistant Registrar, the setting aside of his orders and an order that the defendant pay the plaintiff's costs of the proceedings and of the Notice of Motion. 10 A review was conducted on 3 October 2001. The orders of the Assistant Registrar stand unless disturbed by the court. The applicant bears the onus of satisfying the court that the orders should be disturbed. 11 The powers and discretions of the court concerning costs may be found in s 76 of the Supreme Court Act 1970. Rule 4 of Part 52A provides that such powers and discretions shall be exercised subject to and in accordance with that Part. They are to be exercised judicially. The court has regard to the relevant circumstances of the particular case before it and the interests of justice between the parties. 12 The nub of the dispute between the parties concerns r 42 (its predecessor was r 65 of Part 52). It is in the following terms:- "42 (1) Where a person is or has been a party to any proceedings in the capacity of trustee or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of the proceedings out of the fund held by the trustee or out of the mortgaged property, as the case may be, in so far as the costs are not paid by any other person. (2) The Court may otherwise order pursuant to sub rule (1) only where— (a) the trustee or mortgagee has acted unreasonably; or (b) in the case of a trustee, he has in substance acted for his own benefit rather than for the benefit of the fund."