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

Supreme Court New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Dierickx & Ors (No. 2) [2012] NSWSC 1430 Hearing dates: 14 September 2012 Decision date: 26 November 2012 Before: White J Decision: Order that the plaintiff pay two-thirds of the defendants' costs on the ordinary basis. Catchwords: COSTS - failure to accept offer of compromise and Calderbank offers - offers made by defendants before the issue on which defendants were ultimately successful had been raised - no order for indemnity costs - Calderbank offers nonetheless relevant to exercise of costs discretion COSTS - successful party unsuccessful on some issues - whether issues are distinct and severable - fact that successful party did not act unreasonably in raising unsuccessful issues does not preclude modification of the usual order to reflect failure on those issues - delay in amending defence to raise issue on which defendants were ultimately successful not material because case would still have been vigorously prosecuted by plaintiff if amendments made earlier - suggested distinction between successful plaintiffs and defendants who reasonably raise unsuccessful severable issues doubted - exercise of costs discretion requires consideration of all circumstances - in circumstances, plaintiff ordered to pay two-thirds of defendants' costs Cases Cited: Reid, Hewitt & Company v Joseph [1918] AC 717 Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328 Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 Short v Crawley (No. 40) [2008] NSWSC 1302 Griffith v Australian Broadcasting Corporation (No. 2) [2011] NSWCA 145 South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2 Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (Supreme Court of New South Wales, Hodgson CJ in Eq, 3 June 1998, unreported, BC9802305) Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Commonwealth of Australia v Gretton [2008] NSWCA 117 PAC Mining Pty Ltd v Esco Corporation (No. 2) [2009] FCAFC 52 Beoco Limited v Alpha Laval Co Limited [1995] QB 137 Cretazzo v Lombardi (1975) 13 SASR 4 Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304 Bowen Investments Pty Ltd v Tabcorp Holdings Limited (No. 2) [2008] FCAFC 107 Category: Costs Parties: HP Mercantile Pty Ltd (Plaintiff) Ludo Victor Dierickx (1st Defendant) Wendy Anne Dierickx (2nd Defendant) Tumut River Orchard Management Limited (In Liquidation) (3rd Defendant) Representation: Counsel: D Fagan SC (Plaintiff) S Fendekian (Defendant) Solicitors: Versace McKenzie Lawyers (Plaintiff) Piper Alderman (1st & 2nd Defendants) File Number(s): 2006/294773