McBride v McBride - [2024] NSWSC 45

Supreme Court

New South Wales

Medium Neutral Citation: McBride v McBride [2024] NSWSC 45
Hearing dates: 1 February 2024
Date of orders: 2 February 2024
Decision date: 02 February 2024
Jurisdiction: Equity - Family Provision List
Before: Elkaim AJ
Decision:
1. The defendant’s notice of motion filed on 5 October 2023 is dismissed.
2. The defendant is to pay the plaintiff’s costs of the motion.

Catchwords:
CONTRACTS – Formation – Offer – Whether the plaintiff made an offer to settle proceedings – Succession Act2006 (NSW) – Litigation through social media – Objective assessment of the social media post.

Legislation Cited:
Succession Act 2006 (NSW), s 59

Cases Cited:
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
Hendricks v McGeoch (2008) Aust Torts Reports 81 - 942; [2008] NSWCA 53
ICTA Investments Pty Ltd t/as Jolly Roger & Anor v GE Commercial Corporation (Australia) Pty Ltd & Anor (2006) Aust Contract Reports 90-244; [2006] NSWCA 290
John Hillam v JPSF Pty Ltd [2017] NSWSC 1510
Jones v Dunkel (1959) 101 CLR 298
Kriketos v Livschitz (2009) 14 BPR 26717; [2009] NSWCA 96

Texts Cited:
Ayasha Aroni, “Can tweets legally bind you?”, Pace University, (7 July 2021) accessed 1 February 2024.

Category: Procedural rulings
Parties: Mr D McBride (Plaintiff)
Ms L McBride (Defendant)
Representation:
Counsel:
Ms M Pringle (Plaintiff)
Ms L McBride (Defendant)
Solicitors:
Glass Goodwin Solicitors (Plaintiff)

File Number(s): 2022/335820

JUDGMENT

On 9 November 2022, the plaintiff filed a summons seeking an order under s 59 of the Succession Act 2006 (NSW) that further provision be made for him from the estate (or notional estate) of Mrs Patricia Mary McBride (the deceased).
The deceased died on 15 November 2021. Her final will is dated 5 February 2014. There are codicils dated 17 June 2014 and 22 October 2018. There is also a statutory declaration made by the deceased on 8 November 2018.
The defendant is the executor under the will. Probate was granted to the defendant on 15 March 2022. The plaintiff and the defendant are brother and sister. There are two other siblings, namely Ms Catherine McBride and Mr John McBride.
The bulk of the deceased’s estate was left to the defendant. It is mainly constituted by an apartment in Neutral Bay where the defendant now lives and carries on her practice as a barrister. The defendant is representing herself in the proceedings.
The plaintiff’s benefit from the deceased’s estate was made up of some personal items and about $10,000. The estate was distributed before the plaintiff’s summons was filed.
The plaintiff’s summons has been subject to case management and, in general terms, is making its way towards a final hearing.
On 5 October 2023, the defendant filed a notice of motion seeking a number of orders premised upon a conclusion that the plaintiff had made an offer to settle the litigation and the offer had been accepted by the defendant. If this is correct, the proceedings should necessarily come to an end. The amount of…

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 McBride v McBride

Details

AGLC: McBride v McBride [2024] NSWSC 45
Case: [2024] NSWSC 45
Decision Date: 02 February 2024

CaseChat Overview and Summary

The case of McBride v McBride involved a dispute between the parties regarding the formation of a contract through a social media post, which the plaintiff claimed constituted an offer to settle the proceedings. The matter was heard in the Supreme Court of New South Wales. The defendant argued that there was no valid offer to settle, while the plaintiff maintained that their social media post constituted a genuine offer. The central issue before the court was whether the social media post made by the plaintiff constituted an offer to settle the proceedings, and if so, whether the defendant accepted it.

The court considered the objective assessment of the social media post to determine if it constituted an offer. The court looked at the language used in the post and the context in which it was made, including the surrounding circumstances and the relationship between the parties. The court held that the social media post did not constitute a clear and unequivocal offer to settle the proceedings. The language used in the post was not sufficiently definite to be considered an offer, and the context in which it was made did not support an interpretation that the plaintiff intended to make a binding offer.

Based on its analysis, the court found that there was no valid offer to settle the proceedings. Consequently, the court dismissed the plaintiff's claim. The court emphasised the importance of clear and unambiguous language when making offers, particularly in the context of litigation, and highlighted the need for an objective assessment of the circumstances surrounding the alleged offer. The court did not make any orders regarding costs or further action in the proceedings.

Orders