HP Mercantile Pty Ltd v Dierickx (No 2)

HP Mercantile Pty Ltd was a plaintiff and Dierickx was a defendant in a dispute concerning a property transaction. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff should be ordered to pay the defendant's costs due to their failure to accept certain offers of compromise made before the issues on which the defendants were ultimately successful had been raised. Additionally, the court had to determine if the issues were distinct and severable, and whether the delay in amending the defence to raise the issue on which the defendants were ultimately successful precluded the plaintiff from receiving costs.

The court found that although the Calderbank offers were made before the issue on which the defendants were ultimately successful had been raised, they were still relevant to the exercise of the costs discretion. The court also noted that the fact the plaintiff did not act unreasonably in raising unsuccessful issues did not preclude a modification of the usual order to reflect the failure on those issues. The court found that the delay in amending the defence was not material because the case would still have been vigorously prosecuted by the plaintiff if the amendments had been made earlier. The court further doubted the suggested distinction between successful plaintiffs and defendants who reasonably raise unsuccessful severable issues, and found that the exercise of the costs discretion requires consideration of all circumstances. As a result, the plaintiff was ordered to pay two-thirds of the defendants' costs.

The court emphasised the importance of considering all circumstances when exercising its costs discretion, and found that the plaintiff's failure to accept the offers of compromise was a relevant factor. The court also found that the delay in amending the defence was not material because the case would still have been vigorously prosecuted by the plaintiff if the amendments had been made earlier. The court further found that the distinction between successful plaintiffs and defendants who reasonably raise unsuccessful severable issues was not applicable in this case. Finally, the court ordered the plaintiff to pay two-thirds of the defendants' costs, taking into account all the circumstances of the case.