Rayner & Anor v Australia and New Zealand Banking Group Ltd

[2003] WASCA 264

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Costs order and contractual right to costs
4. › Recovery action by mortgagee
5. › Whether costs order to be taxed overrode contractual right to costs under mortgage
6. › Whether mortgagee obliged to tax costs before recovering them
1. Mortgage
2. › Mortgagee's rights
3. › Contractual right to recover enforcement costs
4. › Relationship between contractual entitlement and court costs order
5. › Whether court order for party and party costs deprived mortgagee of contractual right to indemnity costs

Quick Take

A standard court order for costs to be taxed does not deprive a mortgagee of its contractual right under the mortgage to recover enforcement costs from the security. To override the contractual entitlement, the court must make the costs order with express reference to and adjudication of the mortgagee's contractual or equitable rights. However, the court retains discretion to deprive a mortgagee of its contractual costs entitlement in respect of litigation costs where it exercises that discretion with knowledge of and intention to override those contractual rights.