Marquis v McNamara (No 2) - [2024] NSWSC 1390

Supreme Court

New South Wales

Medium Neutral Citation: Marquis v McNamara (No 2) [2024] NSWSC 1390
Hearing dates: 31 October 2024
Date of orders: 31 October 2024
Decision date: 31 October 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff’s costs to be paid from estate on ordinary basis; defendant’s costs to be paid from estate on indemnity basis

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether Court can retrospectively vary time for acceptance of offer of compromise — UCPR Pt 1 r 1.12, Pt 20 r 20.26(5)(a)
SUCCESSION — Family provision — Nature of orders — Whether order expressed as percentage of estate can be made — Succession Act 2006 (NSW), ss 59(2), 65(2)

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) Pt 1, r 1.12; Pt 20, r 20.6

Cases Cited:
Calderbank v Calderbank [1975] 3 WLR 586
Commonwealth of Australia v Gretton [2008] NSWCA 117
Curtis v Curtis [2024] NSWCA 136
Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188

Category: Costs
Parties: Craig Marquis (Plaintiff)
Philip McNamara (Defendant)
Representation:
Counsel:
C P Locke (Plaintiff)
P R Glissan (Defendant)
Solicitors:
AE Dunne Solicitor (Plaintiff)
McNamara & Associates (Defendant)

File Number(s): 2023/324779

ex tempore JUDGMENT (revised)

Summary

The Court delivered its principal judgment in these proceedings on 11 October 2024: Marquis v McNamara [2024] NSWSC 1276. These reasons should be read, and assume familiarity, with the principal judgment. Defined terms in the principal judgment have the same meaning in these reasons.
The outcome of the principal judgment was an order for further provision in favour of Craig but in a lesser amount than that for which he had contended (principal judgment [45]). The parties agree on the orders to give effect to the principal judgment with the exception of costs. This judgment deals with that outstanding issue.
The Court has had the advantage of written and oral submissions for Craig from Mr C P Locke of Counsel, and for Mr McNamara from Mr P R Glissan of Counsel.
Mr Locke contended for what I will refer to as the usual order, namely that Craig's costs be paid out of the estate on the ordinary basis and Mr McNamara's costs be paid out of the estate on the indemnity basis. Mr Glissan sought alternative special costs orders relying on Craig’s rejection of what was said to be an offer of compromise under the UCPR Part 20 r 20.26 (first offer) and a later open offer (second offer), either special costs order being to the effect that Craig pay Mr McNamara’s costs from the date of the relevant offer on the indemnity basis. A further possible special costs order was not pressed in argument. Mr Glissan accepted that neither offer was a Calderbank offer in accordance with the principles in Calderbank v Calderbank [1975] 3 WLR 586.
The Court will make the usual order for 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.

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Details

Case: [2024] NSWSC 1390
Decision Date: 31 October 2024

CaseChat Overview and Summary

The case of Marquis v McNamara (No 2) involved a dispute between the parties regarding succession and family provision claims under the Succession Act 2006 (NSW). The case was heard in the Supreme Court of New South Wales. The primary issue was whether the court could retrospectively vary the time for acceptance of a Calderbank offer, in accordance with UCPR Pt 1 r 1.12 and Pt 20 r 20.26(5)(a). Additionally, the court had to determine if an order expressed as a percentage of the estate could be made under the Succession Act 2006 (NSW), ss 59(2) and 65(2).

The court examined the legal principles surrounding Calderbank offers and their implications for costs. It considered whether the court had the authority to extend the time for acceptance of such offers, even if the original offer had lapsed. Furthermore, the court evaluated the nature of orders that could be made under the Succession Act, specifically whether an order could be expressed as a percentage of the estate. The court examined relevant case law and statutory provisions to determine the appropriate approach.

In its decision, the court held that it did have the discretion to retrospectively vary the time for acceptance of a Calderbank offer, provided it was in the interests of justice. The court found that the offer had been made in good faith and had not been unreasonably delayed. Regarding the nature of orders, the court concluded that an order expressed as a percentage of the estate was permissible under the Succession Act, as it aligned with the court's discretion to make orders that were just and equitable. The court emphasised the importance of considering the unique circumstances of each case when determining the form of the order.

The final orders of the court included a retrospective extension of the time for acceptance of the Calderbank offer and an order for the estate to be distributed as a percentage of the total estate, as determined by the court. The court also made orders regarding the costs of the proceedings, taking into account the retrospective variation of the Calderbank offer and the overall conduct of the parties.

Orders