Kyabram Property Investments Pty. Limited & Anor. v Murray & Anor. Murray & Anor. v Kyabram Property Investments Pty. Limited & Anor.

[2005] NSWCA 87

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Court's discretion as to costs
3. › Mortgage agreement
4. › Contractual entitlement to indemnity costs
5. › Whether contractual provision subject to court's discretion
6. › Whether failure to plead contractual entitlement relevant to exercise of discretion
7. › Supreme Court Act 1970 (NSW), s 76(1)(a)
1. Costs
2. › Court's discretion as to costs
3. › Mortgage agreement
4. › Scope of costs clause
5. › Whether costs clause extends to costs of defending cross-claim alleging unconscionability
1. Practice and Procedure
2. › Pleading
3. › Requirement to plead specifically matters that may take defendant by surprise
4. › Failure to plead contractual entitlement to solicitor and own client costs
5. › Supreme Court Rules 1970 (NSW), Pt 15 r 13(1)

Quick Take

A mortgagee seeking to rely on a contractual entitlement to solicitor and own client costs must specifically plead that entitlement in its statement of claim; a bare claim for 'costs' will be treated as a conventional claim for party/party costs. A mortgage costs clause covering expenditure 'for or in connection with' the mortgage does not extend to the costs of defending a cross-claim alleging the mortgage was unconscionable or unjust.