HP Mercantile Pty Ltd v Dierickx (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Decision date:

11 April 2014

Before:

Beazley P;
Meagher JA;
Emmett JA

Decision:

(1) The notice of motion filed on 6 January 2014 be dismissed otherwise than in respect of orders made by consent.

(2) The applicant pay the respondents' costs of the motion in so far as it relates to indemnity costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - judgments and orders - amending, varying and setting aside

PROCEDURE - costs - order for costs on indemnity basis - offers of compromise - whether it was unreasonable not to accept offers

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(3A), 36.17

Cases Cited:

Calderbank v Calderbank [1975] All ER 333
HP Mercantile Pty Limited v Dierickx [2013] NSWCA 479

Category:

Consequential orders

Parties:

HP Mercantile Pty Limited (Appellant)
Ludo Victor Dierickx (First Respondent)
Wendy Anne Dierickx (Second Respondent)
Tumut River Orchard Management Limited (in liq) (Third Respondent)

Representation:

Counsel:
P Knowles (Appellant)
S Fendekian (First and Second Respondents)
Solicitors:
Versace McKenzie Lawyers (Appellant)
Piper Alderman (First and Second Respondents)

File Number(s):

2012/290553

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2012] NSWSC 1005

Date of Decision:

2012-08-31 00:00:00

Before:

White J

File Number(s):

2006/294773

Judgment

1. THE COURT: On 23 December 2013, for reasons published on that day (the Principal Reasons), the Court made orders that the appeal in these proceedings be allowed and that the orders made by the primary judge on 31 August 2012 be set aside (see HP Mercantile Pty Limited v Dierickx [2013] NSWCA 479). The Court ordered that, in lieu of the primary judge's orders, judgment be entered in favour of HP Mercantile against Mr and Mrs Dierickx for the balance of the principal of the loan made under the agreement entered into between them. The Court ordered that Mr and Mrs Dierickx pay HP Mercantile's costs of the appeal and of the proceedings at first instance.

1. By notice of motion filed on 6 January 2014, HP Mercantile has applied, under UCPR 36.16(3A) or UCPR 36.17, for variation of the orders made on 23 December 2013. Most of the variations are formal and have been agreed to by the parties. Orders in accordance with that agreement were made on 31 January 2014 and 2 April 2014. However, HP Mercantile has also applied for an order that its costs be paid on an indemnity basis. It postulates four alternative dates from which it asks that its costs be paid on…