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  • Unreported Judgment

Jackson v Arawak Holdings Pty Ltd

 

[2016] QSC 133

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Jackson v Arawak Holdings Pty Ltd & others [2016] QSC 133

PARTIES:

LIANA RENAE JACKSON

(applicant)

v

ARAWAK HOLDINGS PTY LTD ACN 157 865 195 AS TRUSTEE

(first respondent)

VAULT 8 HOLDINGS PTY LTD ACN 105 339 759 AS TRUSTEE (RECEIVER & MANAGER APPOINTED AND IN LIQUIDATION)

(second respondent)

CRAIG ANDREW PERRY

(third respondent)

REGISTRAR OF TITLES

(fourth respondent)

FILE NO/S:

SC No 7304 of 2015

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Philip McMurdo JA

ORDERS:

  1. The applicant pay the first respondent its costs of the proceeding, including reserved costs, upon the indemnity basis.
  2. There be no order for costs between the applicant and the third respondent.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – where the amended originating application was dismissed – where the first respondent seeks its costs on the indemnity basis pursuant to clauses of the loan document and mortgage – whether the first respondent’s costs ought to be upon the indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the third respondent successfully defended the sole claim against him but did not necessarily establish he was in lawful occupation of the subject property – where the third respondent seeks his costs on the standard basis – whether costs ought to be awarded

Jackson v Arawak Holdings Pty Ltd & Ors [2016] QSC 57, related

Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 229, cited

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers

No appearance by the first and third respondents, the first and third respondents’ submissions were heard on the papers

SOLICITORS:

No appearance for the applicant

No appearance for the first and third respondents

 
  1. PHILIP McMURDO JA:  On 17 March 2016 I gave judgment, dismissing the amended originating application and ordering that the caveat lodged by the applicant be removed.[1]  There remained the question of costs which is determined by this judgment.
  2. The respondents filed, as directed, written submissions as to costs on 31 March 2016.  However, the applicant Ms Jackson, has made no submission in response.  She has been without legal representation since the judgment was given.  As the respondents were kept informed, she requested several extensions of time within which to deliver her submissions (if any) as to costs.  It appears that she is in poor health and has difficulty in understanding that, irrespective of her ongoing disputes with Mr Perry, it is necessary for her to present now any argument as to why she should not pay the respondents’ costs, and in the case of the first respondent, upon the indemnity basis as it seeks.  On 8 June, Ms Jackson forwarded to my chambers a document in the form of an application to the Court of Appeal.  I do not wish to sound unsympathetic to the circumstances of Ms Jackson, as she claims them to be within that document, when I say that it is of no relevance to the present question, namely what order should be made for the costs of the proceeding which has been finally determined.  The only relevance of that document to the present question is its indication of an argument that there should be no ruling on the question of costs pending the determination of an appeal against the principal judgment.  It appears that no appeal has been filed.  But in any case it would not be appropriate to defer the question of costs pending an existing appeal.
  3. It is unnecessary to discuss here each of the issues and findings which were made in the principal judgment.  On the issues which were joined, the applicant was entirely unsuccessful.  In particular she failed on the argument which impugned the mortgage and associated documents.  However the issues which were joined did not include other subjects of likely controversy.  As I said in the principal judgment, the question of whether the first respondent is presently entitled to exercise a mortgagee’s power of sale was not litigated and there was no admission on behalf of Ms Jackson that if her challenge to the mortgage failed, the first respondent was presently entitled to sell.[2]  In turn, the entitlement of Mr Perry to occupy the house was not determined, his entitlement depending upon whether the first respondent is entitled to exercise its default powers.
  4. The first respondent seeks its costs upon the indemnity basis, in reliance upon clause 7.1 of the loan document and clause 12(a) of the mortgage.  The latter relevantly provides:

“If you are an individual when the mortgagee asks you must pay the mortgagee any amount the mortgagee … reasonably incurs or expends in enforcing this mortgage after you are in default.  These may include expenses incurred in preserving or maintaining the property - such as … legal expenses on a full indemnity basis.”

  1. Provisions such as that term do not require a court, in each and every case, to exercise the discretion in favour of indemnity costs.  But they will usually have that consequence.[3]
  2. As should appear from the principal judgment, the conduct of the first respondent, which was wholly controlled by Mr Perry, was not exemplary.  The means by which it became a registered mortgagee were worthy of criticism.  Nevertheless the substantial controversy was as to the effectiveness of a mortgage and associated agreements which had passed to the first respondent and Ms Jackson failed to prove her case, which was that the documents were not enforceable against her because her apparent signature in each case was a forgery.  That being the contest between her and the first respondent, there is no rational basis upon which the first respondent should be denied an order for costs.  Further there is no basis for holding that in this case, the costs ought not to be upon the indemnity basis as Ms Jackson agreed in the mortgage.
  3. Mr Perry seeks his costs upon the standard basis.  The relief which was claimed against him was an order that he vacate the house.  That relief was sought upon the sole argument that his right to occupy came only through the mortgage and the mortgage was unenforceable.  But it does not follow from my conclusions about the mortgage that he was in lawful occupation of the house.  As already noted, the question of whether the mortgagee had become entitled to exercise its default powers was not litigated and there was a substantial basis for doubt whether there had been a default.  Quite possibly then, Mr Perry has for some years been occupying the house as a trespasser.  If that should prove to be the case, there could be an unfairness in requiring Ms Jackson to pay his costs of defending her claim for possession, although the claim was argued upon quite a different basis.  Further there is the fact that his evidence was in some respects untrue.[4]  In those circumstances I am not persuaded that there should be any order for costs in his favour.
  4. For these reasons the orders will be as follows:

(1)The applicant pay the first respondent its costs of the proceeding, including reserved costs, upon the indemnity basis.

(2)There be no order for costs between the applicant and the third respondent.

 

Footnotes

[1] Jackson v Arawak Holdings Pty Ltd & Ors [2016] QSC 57

[2] [2016] QSC 57, [104].

[3] Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 229 [6], [10] and [11].

[4] See eg [2016] QSC 57, [57].

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Editorial Notes

  • Published Case Name:

    Jackson v Arawak Holdings Pty Ltd & Others

  • Shortened Case Name:

    Jackson v Arawak Holdings Pty Ltd

  • MNC:

    [2016] QSC 133

  • Court:

    QSC

  • Judge(s):

    McMurdo JA

  • Date:

    14 Jun 2016

Litigation History

No Litigation History

Appeal Status

No Status