HP Mercantile Pty Ltd v Dierickx & Ors (No. 2) [2012] NSWSC 1430

HP Mercantile Pty Ltd v Dierickx & Ors (No. 2) [2012] NSWSC 1430

The defendants were the successful parties and HP Mercantile should not have sued them, but indemnity costs were not justified because HP Mercantile's failure to accept the Calderbank offers was not unreasonable and the issue on which the defendants ultimately succeeded had not been raised when the offers and offer of compromise were made. Although the defendants did not act unreasonably in raising the failed defences, those severable issues occupied approximately 80-90 per cent of the hearing and preparation, so it would not be fair to award all their costs. Taking account of their overall success and substantial settlement offers, the fair order was that HP Mercantile pay two-thirds of...

Jurisdiction
Australia
Judgment Date
26 November 2012
Procedural Posture
Costs / Costs Judgment After Judgment for the Defendants and Dismissal of the Cross Claim
Outcome
HP Mercantile Pty Ltd ordered to pay two-thirds of Mr and Mrs Dierickx's costs on the ordinary basis.
Legal Topics
['costs Following the Event' 'calderbank Offers' 'offer of Compromise' 'indemnity Costs' 'issue Based Costs' 'severable Issues' 'costs Discretion']
['costs' 'civil Procedure'] ['costs Following the Event' 'calderbank Offers' 'offer of Compromise' 'indemnity Costs' 'issue Based Costs' 'severable Issues' 'costs Discretion']

Case Brief

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Procedural Posture

Costs / Costs Judgment After Judgment for the Defendants and Dismissal of the Cross Claim

Legal Issues

  1. 1 ['Whether the defendants should receive indemnity costs because HP Mercantile failed to accept Calderbank offers or an offer of compromise.' 'Whether the usual costs order should be modified because the defendants succeeded overall but failed on distinct and severable issues that occupied most of the hearing and preparation.' 'Whether the late amendment raising the issue on which the defendants ultimately succeeded affected the costs order.' "Whether HP Mercantile should pay all, none, or a proportion of the defendants' costs."]

Ratio Decidendi

The defendants were the successful parties and HP Mercantile should not have sued them, but indemnity costs were not justified because HP Mercantile's failure to accept the Calderbank offers was not unreasonable and the issue on which the defendants ultimately succeeded had not been raised when the offers and offer of compromise were made. Although the defendants did not act unreasonably in raising the failed defences, those severable issues occupied approximately 80-90 per cent of the hearing and preparation, so it would not be fair to award all their costs. Taking account of their overall success and substantial settlement offers, the fair order was that HP Mercantile pay two-thirds of...

Court Disposition

HP Mercantile Pty Ltd ordered to pay two-thirds of Mr and Mrs Dierickx's costs on the ordinary basis.

Orders

  • ["Order that the plaintiff pay two-thirds of the defendants' costs on the ordinary basis." "HP Mercantile should pay two-thirds of Mr and Mrs Dierickx's costs on the ordinary basis."]