HP Mercantile Pty Ltd v Dierickx (No 2) [2014] NSWCA 118

HP Mercantile Pty Ltd v Dierickx (No 2) [2014] NSWCA 118

HP Mercantile was not entitled to indemnity costs because the Court was not persuaded that it was unreasonable for Mr and Mrs Dierickx to reject any of the four offers. For the first two offers, HP Mercantile had not yet pleaded estoppel, without which its claim would have failed, and Mr and Mrs Dierickx's prospects were reasonably sound. The third and fourth offers were ambiguous because they dealt with other proceedings or projects as well as the relevant claim, and it was not unreasonable to reject them without information about the likely quantum of costs. The motion was therefore dismissed except for consent variations, and HP Mercantile was ordered to pay the respondents' costs of...

Jurisdiction
Australia
Judgment Date
11 April 2014
Procedural Posture
Notice of Motion to Vary Orders and Seek Indemnity Costs Following Appeal / Consequential Orders; on the Papers
Outcome
Notice of motion dismissed except in respect of orders made by consent; application for indemnity costs rejected.
Legal Topics
['variation of Judgments and Orders' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'reasonableness of Rejecting Offers']
['civil Procedure' 'costs'] ['variation of Judgments and Orders' 'indemnity Costs' 'offers of Compromise' 'calderbank Offers' 'reasonableness of Rejecting Offers']

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Procedural Posture

Notice of Motion to Vary Orders and Seek Indemnity Costs Following Appeal / Consequential Orders; on the Papers

Legal Issues

  1. 1 ['Whether orders made on 23 December 2013 should be varied under UCPR 36.16(3A) or UCPR 36.17.' 'Whether HP Mercantile should receive costs on an indemnity basis by reason of four Calderbank offers made before trial.' 'Whether it was unreasonable for Mr and Mrs Dierickx not to accept each of the offers.']

Ratio Decidendi

HP Mercantile was not entitled to indemnity costs because the Court was not persuaded that it was unreasonable for Mr and Mrs Dierickx to reject any of the four offers. For the first two offers, HP Mercantile had not yet pleaded estoppel, without which its claim would have failed, and Mr and Mrs Dierickx's prospects were reasonably sound. The third and fourth offers were ambiguous because they dealt with other proceedings or projects as well as the relevant claim, and it was not unreasonable to reject them without information about the likely quantum of costs. The motion was therefore dismissed except for consent variations, and HP Mercantile was ordered to pay the respondents' costs of...

Court Disposition

Notice of motion dismissed except in respect of orders made by consent; application for indemnity costs rejected.

Orders

  • ['The notice of motion filed on 6 January 2014 be dismissed otherwise than in respect of orders made by consent.' "The applicant pay the respondents' costs of the motion in so far as it relates to indemnity costs."]