Supreme Court New South Wales Medium Neutral Citation: James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 750 Hearing dates: 24 March 2014 Decision date: 27 March 2014 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: See [4] Catchwords: COSTS and final order - no issue of principle Category: Procedural and other rulings Parties: James Woodward Neale - First Plaintiff J.W. Neale Pty Ltd (Receivers and Managers appointed) - Second Plaintiff Commonwealth Bank of Australia trading as Bank of Western Australia Ltd - First Defendant Brett Stephen Lord - Second Defendant Stephen James Parbery - Third Defendant Secured Global Opportunity Limited - Fourth Defendant Representation: Counsel: JW Neale - First and Second Plaintiffs - (self-represented) P Dowdy - First to Fourth Defendants Solicitors: JW Neale - First and Second Plaintiffs - (self-represented) Norton Rose Fulbright - First to Fourth Defendants File Number(s): 2011/211735; 2011/401621 Consolidated Judgment 1HIS HONOUR: On 24 March 2014 I gave judgment in this matter reserving for argument questions of costs and any further issues that required determination. I have received written submissions on costs on behalf of the Commonwealth Bank and SGOL. I have also heard brief oral submissions. Clause 12.1(b) of the General Terms for Business Lending dated December 2007 provides as follows: "You must pay or reimburse...all our costs in otherwise acting in connection with the Facility Documents such as exercising, enforcing or preserving rights (or considering doing so), or doing anything in connection with any inquiry by a government agency involving you, any of your Related Entities or any Guarantor". 2Costs is defined in cl 22 of the General Terms to mean: "Costs, charges and expenses and includes: (a) (legal costs) (including internal legal costs) on whichever is the higher of a full indemnity basis or solicitor and own client bases". 3The Commonwealth Bank and SGOL seek costs of the consolidated proceedings on the indemnity basis. In my view they are entitled to such costs in respect of the proceedings brought by the Commonwealth Bank and SGOL as falling within the meaning of "acting in connection with the Facility Documents" as described in cl 12.1 of the General Terms, but they are not entitled to costs on an indemnity basis with respect to the proceedings brought by Mr Neale and now dismissed. They are only entitled to the costs of those proceedings on the ordinary basis. 4I make the orders in the Short Minutes of Order which I have initialled, dated today's date and placed with the papers. ORDERS 1. Judgment for Secured Global Opportunity Limited against the First Defendant (James Woodward Neale) and the Second Defendant (J W Neale Pty Ltd ACN 001 839 854 (Receivers and Managers appointed) in the sum of $31,552,497 as at 3 November 2013 in no. 401621 of 2011. 2. Order that as and from 4 November 2013, interest be payable on the amount of $31,552,497 under section 100 of the Civil Procedure Act at the rate or rates applicable under the Mortgage and Loan Facilities pleaded in the Amended Commercial List Statement filed 17 December 2013 in no. 401621 of 2011. 3. Order that as and from 28 March 2014, interest be payable on the judgment debt under s 101 of the Civil Procedure Act 2005 (NSW) at the rate or rates applicable under the Mortgage and Loan Facilities pleaded in the Amended Commercial List Statement filed 17 December 2013 in no. 401621 of 2011. 4. Judgment for possession of the whole of the land comprised in Certificate of Title, Folio Identifier Lot 2 in Deposited Plan 322390 and known as 35 Fox Valley Road, Wahroonga in the State of New South Wales. 5. Order that a Writ of Possession issue forthwith. 6. Upon the undertaking given to the Court by James Woodward Neale and J W Neale Pty Ltd that they will vacate and give possession of 35 Fox Valley Road, Wahroonga to Secured Global Opportunity Ltd no later than 30 June 2014, stay execution of the said Writ of Possession up to and including 30 June 2014. 7. Dismiss the Amended Commercial List Cross-Claim Statement filed 19 July 2012 in no. 401621 of 2011. 8. Dismiss the Summons filed 29 June 2011 and Statement of Claim filed 18 August 2011 in no. 211735 of 2011. 9. Order James Woodward Neale and J W Neale Pty Ltd ACN 001 839 854 (Receivers and Managers appointed) to pay the costs of proceedings 2011/401621 on the full indemnity basis and of proceedings 211735 of 2011 on the ordinary basis. 10. Order that the Summons filed 13 December 2011 and Amended Commercial List Statement filed 17 December 2013 in no. 401621 of 2011 be amended so as to:- (a) substitute Commonwealth Bank of Australia Limited for Bank of Western Australia Ltd as First Plaintiff; (b) add Secured Global Opportunity Limited as Second Plaintiff; and an amended Summons to be filed in the Registry by 4.00pm today, 27th March 2014. These orders to be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2014