Maynard v Maynard (No 2)

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.