HP Mercantile Pty Ltd v Dierickx (No 2)

HP Mercantile Pty Ltd (the applicant) sought to set aside or vary a judgment entered against it in favour of Mr and Mrs Dierickx (the respondents). The dispute concerned the applicant's liability to the respondents, which had previously been determined by the court. The applicant's application to set aside or vary the judgment was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the judgment should be set aside or varied, and whether the respondents should be awarded their costs of the application on an indemnity basis. The latter issue turned on whether it was unreasonable for the applicant not to accept offers of compromise made by the respondents.

The Court of Appeal dismissed the applicant's motion to set aside or vary the judgment, except for orders made by consent. The Court reasoned that the applicant had not demonstrated sufficient grounds to warrant setting aside or varying the judgment under the relevant rules of court. Furthermore, the Court found that the applicant had not established that it was unreasonable for it not to accept the respondents' offers of compromise, and therefore declined to order indemnity costs in favour of the respondents.

Consequently, the Court ordered that the applicant pay the respondents' costs of the motion, but only in so far as it related to the issue of indemnity costs. The notice of motion filed on 6 January 2014 was otherwise dismissed.