Marquis v McNamara (No 2)

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.