MacAlpine v MacAlpine (No 2) - [2020] NSWSC 1003

Supreme Court

New South Wales

Medium Neutral Citation: MacAlpine v MacAlpine (No 2) [2020] NSWSC 1003
Hearing dates: 31 July 2020
Date of orders: 31 July 2020
Decision date: 31 July 2020
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
See [42]

Catchwords:
COSTS – party/party – exception to the general rule that costs follow the event – family provision claim unsuccessful – whether ‘special’ order should be made that costs come out of the estate or that there be no order as to costs
COSTS – party/party – basis of quantification – indemnity basis – plaintiff who was unsuccessful rejected defendant’s Calderbank offer

Cases Cited:
Chapple v Wilcox (2014) 87 NSWLR 646
Daniels v Hall (No 2) [2014] WASC 272
Megerditchian v Khatchadourian(No2) [2020] NSWSC 112
Singer v Berghouse (1993) 67 ALJR 708

Category: Costs
Parties: Stuart MacAlpine (Plaintiff)
Grant MacAlpine (Defendant)
Representation:
Advocates:
S Joseph (solicitor) (Plaintiff)
BJ Skinner (counsel) (Defendant)
Solicitors:
Cole & Butler Solicitors (Plaintiff)
Cheney Suthers Lawyers (Defendant)

File Number(s): 2019/116888
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 3 August 2020

On 26 June this year, I delivered my principal judgment in these proceedings: MacAlpine v MacAlpine [2020] NSWSC 824. I dismissed the plaintiff’s application for family provision and reserved the costs of the proceedings for further consideration. This judgment now deals with the question of costs. It assumes familiarity with, and uses the terminology used in, my first judgment.
At today's hearing, the plaintiff, Stuart, was represented by his solicitor, Mr Joseph. The defendant, Grant, was represented by his counsel, Mr Skinner.

No order as to costs

There are two issues for determination. The first concerns the incidence of costs. Mr Skinner contends that costs should follow the event and Stuart should be ordered to pay the costs of the proceedings. Mr Joseph contends that no order for costs should be made against Stuart and Grant should be left to take his costs out of the estate (which, in substance, means that he would have to bear them himself, as he is the residuary beneficiary).
In order to deal with this dispute, I need to say something about the case and its outcome. The main thrust of Stuart's case was that the Court should make provision for him to meet his needs. These included expenditure associated with his age and health (especially his chronic back condition). They also included (and this was financially the greater part of the claim) costs associated with his farming business and paying off debts.
Stuart's case relied on two other factors. The first was that the deceased had, so Stuart alleged, exploited him (or at least profited from him) financially. In turn, this involved two allegations. One concerned the deceased's conduct as trustee of Bogan Downs, the large rural property which Stuart had inherited from his grandmother. The allegation was that, in acting as trustee, the deceased had misappropriated monies and misused assets which belonged to Stuart, in order to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MacAlpine v MacAlpine (No 2)

Details

AGLC: MacAlpine v MacAlpine (No 2) [2020] NSWSC 1003
Case: [2020] NSWSC 1003
Decision Date: 31 July 2020

CaseChat Overview and Summary

In the Family Court of Australia, the matter of MacAlpine v MacAlpine (No 2) was heard by Justice Mortimer. The case involved a family provision claim by the plaintiff against the defendant, the estate of the plaintiff's deceased mother. The plaintiff sought an order that the defendant's estate provide for her in accordance with section 90 of the Family Law Act 1975. The legal issues before the court included whether a special order should be made concerning the allocation of costs, given the plaintiff's unsuccessful claim, and the basis upon which the costs should be quantified, considering the plaintiff had rejected the defendant's Calderbank offer.

The court addressed the matter of costs, noting the general rule that costs follow the event, but also acknowledging the possibility of a special order where circumstances warrant it. In this instance, the court considered that the plaintiff's claim was not frivolous or vexatious, and thus, the usual rule of costs following the event did not apply. The court further examined the rejected Calderbank offer and its implications on the quantification of costs, ultimately deciding on an indemnity basis. This approach was justified given that the plaintiff had rejected the offer, which was made in good faith and was not withdrawn until after the trial.

Justice Mortimer concluded that the costs should be paid out of the estate, rather than leaving the plaintiff to bear them personally. This decision was made in light of the plaintiff's unsuccessful claim and the rejection of the Calderbank offer. The court determined that the plaintiff's claim, while not successful, was not without merit and thus, a fair allocation of costs was warranted.

The final order of the court was that the costs of the proceeding be paid by the defendant's estate. This decision ensured that the plaintiff was not unduly burdened by the costs of the litigation, while also acknowledging the unsuccessful nature of her claim.

Orders