HP Mercantile Pty Ltd v Hartnett

HP Mercantile Pty Ltd appealed a decision of the primary judge, and numerous respondents were involved in the appeal, represented by two separate firms of solicitors who briefed separate counsel. The appeal was dismissed with costs. The central issue before the Court of Appeal was whether the respondents should be allowed more than one set of costs, given their multiple representations.

The Court of Appeal was required to determine whether to depart from the usual rule that multiple respondents, even if aligned in interest, are generally entitled to separate sets of costs. The court considered the circumstances of the representation, including the fact that the respondents were represented by two different firms of solicitors and briefed separate counsel, and whether this justified an award of more than one set of costs.

The Court of Appeal reasoned that while multiple respondents are often entitled to separate costs, this is not an absolute rule. In this instance, the court found that the respondents should be treated as having been represented by the same counsel and the same solicitors for the purpose of costs. The court's intention was to allow a single set of costs for the respondents, thereby limiting the costs recoverable by the appellant.

Consequently, the Court of Appeal varied the costs order made by the primary judge. The appellant was ordered to pay the costs of the respondents on the basis that the respondents were to be treated as having been represented by a single set of solicitors and counsel, allowing only a single set of costs. The respondents were also ordered to pay the appellant’s costs of a specific notice of motion.