NSW Caselaw
New South Wales Supreme Court
CITATION : Ginelle Pty Limited v Singh & Anor [2010] NSWSC 1166
HEARING DATE(S) : 17 September 2010
JUDGMENT DATE : 22 October 2010
JUDGMENT OF : Garling J
DECISION : The mortgagee is not entitled to retain $25,000 as security for future legal costs. The mortgagor's other claims for relief are dismissed. The parties are to prepare short minutes of order to give effect to these findings. Proceedings adjourned to 9.30am on 2 November 2010.
CATCHWORDS : MORTGAGES – Mortgagee exercised power of sale upon default – Claim by mortgagors that mortgagee incorrectly accounted for the proceeds of sale – Whether mortgagee entitled to costs and expenses levied – Whether mortgagee entitled to retain an amount as security for future legal costs – Where the future legal costs relate to proceedings other than the dispute over redemption accounts - CONTRACTS – Interpretation of settlement agreement – Whether the settlement agreement in respect of proceedings to recover a debt affected the terms of the mortgage securing that debt – Doctrine of merger considered - PRACTICE AND PROCEDURE – Interest up to judgement – Interest after judgment – Where terms of mortgage provide for the payment of interest at a rate higher than the statutory rate – Where the mortgagee has not made a formal application under the Civil Procedure Act 2005 that interest be payable at the higher rate
Civil Procedure Act 2005 LEGISLATION CITED : Conveyancing Act 1919 Uniform Civil Procedure Rules 2005
CATEGORY : Procedural and other rulings
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 Liberty Funding Pty Limited v Steele-Smith [2004] NSWSC 1100 Mercantile Credits Ltd v McDowell [1980] 2 NSWLR 101 Multispan Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd (No 2) [2001] NSWSC 1047 CASES CITED : Overton Investments Pty Ltd v Cuzeno RVM Pty Ltd [2003] NSWCA 27 Project Research Pty Ltd v Permanent Trustee of Australia Limited (1990) 5 BPR 97341 Radin v Commonwealth Bank of Australia (Federal Court of Australia, 3 February 1998, unreported), Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 at 662 Work Childcare Holdings Pty Ltd (in liq) v Phillip Redmond Dwyer [2006] NSWSC 1443
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