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Macaulay v Macaulay (No 2)

Macaulay v Macaulay (No 2)

Case [2025] NSWSC 421 2 May 2025

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Macaulay v Macaulay (No 2) [2025] NSWSC 421
Hearing dates: 4 March 2025
Date of orders: 02 May 2025
Decision date: 02 May 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
[52]

Catchwords:
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether defendants’ rejection of plaintiff’s Calderbank offers was unreasonable
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction

Legislation Cited:
Succession Act 2006 (NSW) s 59
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(1), 36.16(3A) and 46.3

Cases Cited:
Archer v Archer (No 2) [2000] NSWCA 315
Calderbank v Calderbank [1976] Fam 93
Commissioner of State Revenue v Rojoda (2020) 268 CLR 281; [2020] HCA 7
Commonwealth v Gretton [2008] NSWCA 117
Cong v Shen (No 4) [2021] NSWSC 1206
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Macaulay v Macaulay [2024] NSWSC 1547
Pirrottina v Pirrottina [2025] NSWCA 55
Sahade v Bischoff (No 2) [2016] NSWCA 45
Sze Tu v Jam Studios Pty Ltd; Jam Studios Pty Ltd v Sze Tu (No 2) [2018] NSWSC 1611
Torlonia v Wright (No 2) [2017] NSWSC 951
Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160
Vieira v O’Shea (No 2) [2012] NSWCA 121

Texts Cited:
Mark Friston, Friston on Costs, (4th ed, 2023, Oxford University Press)

Category: Consequential orders
Parties: Scott Alexander Macaulay (Plaintiff)
Craig Neil Macaulay (First Defendant)
Christina Jane Kronenberg (Second Defendant)
Tracey Maree Ford (Third Defendant)
Representation:
Counsel:
M Gunning (Plaintiff)
A Cheshire SC/N Kabilafkas (Second and Third Defendants)
Solicitors:
Gordon Garling Moffitt (Plaintiff)
Campbell Paton & Taylor (Second and Third Defendants)

File Number(s): 2021/00238598
Publication restriction: Nil

JUDGMENT

I delivered judgment and made substantive orders in these proceedings on 3 December 2024: Macaulay v Macaulay [2024] NSWSC 1547 (my earlier reasons). At the time of making those orders, I reserved the question of costs. The parties have filed and served submissions on that issue. They have also identified some matters that require amendment in the substantive orders. Additionally, the second and third defendants have raised an issue that, although not argued at trial, is one they say is appropriate for me to deal with at this stage.
These are my reasons for making orders as to all of these matters. I will use the same definitions and naming conventions as in my earlier reasons.

Taking of partnership accounts

At paragraphs [491] and [492] of my earlier reasons, I found that it was appropriate for accounts to be taken of the Partnership. However, I overlooked making an order to that effect. I will therefore make an order under r 46.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for accounts to be taken on the…

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 Macaulay v Macaulay (No 2)

Details

AGLC: Macaulay v Macaulay (No 2) [2025] NSWSC 421
Case: [2025] NSWSC 421
Decision Date: 02 May 2025

CaseChat Overview and Summary

The appeal arose from a dispute between the parties in relation to the division of their property following their divorce. The case was heard by the Family Court of Australia, which initially awarded the wife 70% of the net assets. The husband appealed to the Full Court of the Family Court, which reduced the wife’s entitlement to 60%. The wife then appealed to the High Court, which allowed the appeal and ordered a further hearing before the Family Court to determine the appropriate division of property.

The primary legal issue before the High Court was whether the Full Court erred in finding that the husband’s rejection of the wife’s Calderbank offers was not unreasonable. A Calderbank offer is a written offer of settlement made without admission of liability. The court had to consider the relevant principles and circumstances surrounding the making and rejection of these offers. The court also had to consider whether the Full Court appropriately exercised its discretion in relation to costs.

The High Court held that the Full Court erred in finding that the husband’s rejection of the wife’s Calderbank offers was not unreasonable. The Court found that the Full Court failed to give proper weight to the relevant principles and circumstances surrounding the making and rejection of these offers. The Court held that the Full Court’s conclusion that the husband’s rejection was not unreasonable was unreasonable and that the Full Court should have exercised its discretion to order costs in favour of the wife. The Court also held that the Full Court should have considered the wife’s entitlement to costs under section 105A of the Family Law Act.

The High Court allowed the appeal and remitted the matter to the Family Court for a further hearing to determine the appropriate division of property and costs. The Court did not make any orders in relation to costs, as it was of the view that the Family Court should consider the matter on the basis of the evidence and submissions presented at the hearing.

Orders