Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156 Hearing dates: 8 May 2013 Decision date: 06 June 2013 Before: Macfarlan JA at [1] Sackville AJA at [35] Decision: (1) Dismiss with costs Mr Caramanlis' Notice of Motion filed on 14 March 2013. (2) In lieu of order 5 made on 28 February 2013, order Mrs Papa to pay Provident Capital's costs, assessed on a solicitor and client basis, of its proceedings against her at first instance (including Mrs Papa's cross-claim against Provident Capital) and its appeal. (3) In lieu of order 11 made on 28 February 2013, order that Mr Caramanlis pay to Mrs Papa: (i) Her costs at first instance of Provident Capital's claim against her (including Mrs Papa's cross-claim against Provident Capital) and her claim against Mr Caramanlis; (ii) Her costs of Provident Capital's appeal against the judgment in her favour; (iii) Her costs of her appeal against the judgment in favour of Mr Caramanlis. (4) If Mrs Papa and Mr Caramanlis are able to agree as to the amount of the damages to be awarded against Mr Caramanlis, direct those parties to file a form of consent order with the Court within seven days of the date of this judgment. (5) If those parties are unable to so agree, direct that Mrs Papa cause her appeal to be listed before the Registrar of the Court of Appeal for the purpose of directions being made as to the filing of evidence of relevant costs and expenses incurred by Provident Capital after 4 July 2010 and the determination of the amount of the damages that should be awarded against Mr Caramanlis. (6) Order Mr Caramanlis to pay the costs of Provident Capital and Mrs Papa of Provident Capital's Notice of Motion filed on 11 March 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: BANKING AND FINANCE - financier proceeding for possession of mortgaged property not precluded from later claiming mortgage debt - whether costs of proceedings recoverable under security documents