MSW Property P/L v Law Mortgages Queensland P/L

[2004] QCA 47

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Departing from the general rule
4. › Indemnity costs
5. › Contractual provision in mortgage requiring mortgagor to pay mortgagee's costs
6. › Whether clause confined to creation of transaction documents rather than enforcement
7. › Clause not extending to litigation costs
1. Practice and Procedure
2. › Costs
3. › Departing from the general rule
4. › Offer to settle
5. › Whether conditions for application of UCPR 360 and 361 satisfied
6. › Difficulty of applying offer-to-settle rules where competing declarations as well as monetary claims
7. › Uniform Civil Procedure Rules 1999 (Qld), rr 360, 361
1. Practice and Procedure
2. › Costs
3. › Apportionment
4. › Mixed success on appeal
5. › Defendant succeeding on one issue but not another
6. › Appropriate costs order where issues severable

Quick Take

A mortgage clause requiring the mortgagor to pay costs and expenses incurred in respect of 'transaction documents' is confined to the creation of those documents and does not extend to costs of enforcement or litigation. UCPR 360 is difficult to apply where proceedings involve competing declarations as well as monetary claims.