Manly Property Holdings Pty Ltd v Lisker Pty Ltd & Anor (No. 2) [2018] NSWSC 61

Supreme Court New South Wales

Medium Neutral Citation: Manly Property Holdings Pty Ltd v Lisker Pty Ltd & Anor (No. 2) [2018] NSWSC 61 Hearing dates: 5 December 2017 Date of orders: 05 February 2018 Decision date: 05 February 2018 Jurisdiction: Equity Before: Slattery J Decision: Cross defendant has validly deducted its costs of defending the cross claim on payment out of its mortgage at settlement. Cross claimant ordered to pay cross defendant's costs of the cross claim on the ordinary basis. Parties directed to bring in short minutes of order to provide for payment to the plaintiff to resolve the issue of any resultant over payment to the cross defendant. Catchwords: COSTS – party/party – exceptions to general rule that costs follow the event - costs of cross-claim against cross-defendant – defendant/cross-claimant does not need to pursue cross-claim as defendant/cross-claimant fails on defence against plaintiff's claim – what is the appropriate order for costs on the cross-claim – is the cross-defendant able to indemnify itself for its costs of the cross-claim under the terms of its mortgage with the plaintiff. Legislation Cited: Civil Procedure Act 2005, s 98 Conveyancing Act 1919, s 94 Corporations Act 2001, s 420A Uniform Civil Procedure Rules 2005, r 42.1. Cases Cited: Break Fast Investments Pty Ltd v Giannopoulos (No. 6) [2012] NSWSC 286 Manly Property Holdings Holdings Pty Ltd v Lisker Pty Ltd & Anor [2017] NSWSC 1395 Parker – Tweedale v Dunbar Bank PLC (No. 2) [1991] Ch 26 Category: Costs Parties: Plaintiff/First Cross-Defendant: Manly Property Holdings Pty Ltd (ACN 161 624 826) First Defendant/Cross-Claimant: Lisker Pty Ltd (ACN 001 695 441) Second Cross-Defendant: Bank of Queensland Limited (ABN 32 009 656 740) Second Defendant: Steyne Developments Pty Ltd Third Cross-defendant: Grindon Pty Limited (ACN 114 995 881) as trustee for the Ekins Family Superannuation Fund Fourth Cross-defendant: David Stuart Gordon Ekins Fifth Cross-defendant: Paul Brendan Hannan Sixth Cross-defendant: Belinda Jane Hannan Seventh Cross-defendant: Merran Grace Cooper Eighth Cross-defendant: Kenny Jackman Ninth Cross-defendant: David Nicholas Foodey Tenth Cross-defendant: Robert John Collister Edwards Eleventh Cross-defendant: Craig Oswald Haskins Twelfth Cross-defendant: George Athol Murray Clapham and Lisa Jane Clapham as trustees for the Clapham Family Superannuation Fund Thirteenth Cross-defendant: George Athol Murray Clapham Fourteenth Cross-defendant: Lisa Jane Clapham Representation: Counsel: