MacAlpine v MacAlpine (No 2)

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 This approach was justified given that the plaintiff had rejected the offer, which was made in good faith and was not withdrawn until after the trial.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.