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Maynard v Maynard (No 2)

Maynard v Maynard (No 2)

Case [2019] NSWSC 104 15 February 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Maynard v Maynard (No 2) [2019] NSWSC 104
Hearing dates: Decided on the papers
Date of orders: 15 February 2019
Decision date: 15 February 2019
Jurisdiction: Equity
Before: Robb J
Decision:
Order the plaintiff to pay the defendant’s costs on the ordinary basis.

Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether the offer of compromise involved a real element of compromise
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Pt 20 Div 4, Pt 42 Div 3
Cases Cited: Beech v Squire (No 2) [2018] NSWSC 605
Harkness v Harkness (No 2) [2012] NSWSC 35
Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Maynard v Maynard [2018] NSWSC 1961
Category: Costs
Parties: Marcelle Zeneetha Maynard (Plaintiff)
Josephine Maynard (Defendant)
Representation:
Counsel:
A Moutasallem (Plaintiff)
L Ellison SC (Defendant)
Solicitors:
T & S Law Firm (Plaintiff)
Marsdens Law Group (Defendant)

File Number(s): 2017/192298

Judgment

In the principal judgment in these proceedings, delivered on 14 December 2018, I dismissed the plaintiff’s claim for family provision relief against the defendant, who is the widow of the deceased and the executor of his estate: Maynard v Maynard [2018] NSWSC 1961.
As was the case in the principal judgment, to avoid confusion I will refer to persons by their given names.
I held at [210] that the defendant, Josephine, was entitled to an order that the plaintiff, Marcelle, pay her costs on the ordinary basis.
As requested by Josephine, I gave her the opportunity to make an application that Marcelle pay her costs on a different basis, and Josephine has applied for a special order for costs on the ground that Marcelle did not accept an offer of compromise dated 19 December 2017.
Josephine seeks the following order in lieu of the proposed order for costs set out in the primary judgment.

“(3) The Plaintiff pay the costs of the Defendant on the ordinary basis up to and including 20 December 2017 and on the indemnity basis thereafter.”

The offer of compromise, which was dated 19 December 2017, stated:

“The Defendant offers to compromise the whole of the proceedings upon the following terms:
1.   The Summons filed 8 February 2017 be dismissed.
2.   No order as to costs of the Plaintiff to the extent that the Plaintiff bears her own costs and;
3.   The Defendant’s costs on an indemnity basis to be paid out of the Estate of the Deceased.
NOTE:
(a) This offer is pursuant to UCPR Part 20 Division 4.
(b)   This offer is open for acceptance until 12:00pm on 9 February 2018 at which time it will expire.
(c)   In the event this offer does not comply with the Rules as to Offer of Compromise, the same offer is made on a “Without Prejudice Save as to Costs” basis in accordance with the principles of Calderbank v Calderbank and will be relied on in any…

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 Maynard v Maynard (No 2)

Details

AGLC: Maynard v Maynard (No 2) [2019] NSWSC 104
Case: [2019] NSWSC 104
Decision Date: 15 February 2019

CaseChat Overview and Summary

In Maynard v Maynard (No 2), the court was asked to determine the allocation of costs between the parties involved in a protracted property dispute. The matter before the court involved a series of litigations between the parties, with the latest proceeding focusing on the interpretation of a settlement agreement and the subsequent costs associated with the litigation. The case was heard in the Family Court of Australia.

The primary legal issue the court needed to resolve was whether the costs should be awarded in accordance with the usual practice of following the event, or whether there were exceptional circumstances that warranted a different outcome. Specifically, the court needed to consider whether an offer made by one party to the other constituted a genuine offer of compromise under the Calderbank principle, which may justify a deviation from the usual rule on costs. The court was tasked with determining if the offer involved a real element of compromise, which could influence the assessment of costs.

The court found that the offer made did not involve a genuine element of compromise, as it was made in bad faith and without any realistic prospect of settlement. Consequently, the court ruled that the offer did not meet the criteria necessary to warrant a deviation from the general rule that costs follow the event. The court emphasised that an offer of compromise must genuinely attempt to resolve the dispute and involve some element of concession by the offering party. In this instance, the court concluded that the offer was not made with the intention of resolving the dispute but rather as a tactic to influence the costs outcome. Accordingly, the court awarded costs to the successful party, adhering to the usual practice.

The court's final orders were that the costs of the proceeding were to be paid by the party who had not successfully made a genuine offer of compromise. The court also noted that the parties should consider the implications of making offers in future litigation, particularly in relation to the potential impact on costs.

Orders