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McFarlane v McFarlane [No 2]

McFarlane v McFarlane [No 2]

Case [2025] VSCA 187 19 August 2025

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-SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0030

ADAM PAUL MCFARLANE	Appellant
v
HEATHER JEAN MCFARLANE (WHO IS SUED AS THE EXECUTRIX OF THE WILL AND ESTATE OF BRIAN HUGH MCFARLANE, DECEASED) [NO 2]	Respondent

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JUDGES:	McLEISH, KAYE and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 187
JUDGMENT APPEALED FROM:	McFarlane v McFarlane [2023] VSC 379 (Barrett AsJ)

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COSTS – Family provision – Costs of trial – Application for provision refused at trial – Provision ordered on appeal in amount substantially less than initially sought – Substantial dispute at trial over property valuations ultimately not of significance to disposition of case – Whether modest success and valuation dispute justify order that defendant pay only half plaintiff’s costs – Plaintiff successfully invoked Court’s jurisdiction – No offer of compromise for relevant amount – Both parties took robust approach to valuation dispute – No basis for departure from usual order for costs.

COSTS – Costs of appeal – Provision ordered in amount substantially less than sought – Several grounds unsuccessful – Whether costs should be decided according to issues in appeal – Appellant succeeded on fundamental issue whether testator failed to discharge moral duty – No basis for departure from usual order for costs.

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Counsel
Appellant:		Mr P Reynolds
Respondent:		Mr N McOmish
Solicitors
Appellant:	Clancy & Triado
Respondent:	GR Legal

MCLEISH JA
KAYE JA
KENNY JA:

On 7 July 2025, the Court granted leave to appeal in this matter and allowed the appeal. The parties were invited to file short submissions as to costs. These reasons should be read along with the Court’s reasons for its substantive orders.[1]
[1]McFarlane v McFarlane [2025] VSCA 163 (‘Reasons’).
The Court’s reasons explained that its provisional view was that there should be no order as to the costs of the trial, in circumstances where Adam was successful to a significantly lesser extent than he had sought, and a disproportionate amount of time and expense was spent addressing questions of value and repairs in respect of two properties, which turned out not to be important to the disposition of the case. In respect of the appeal, given Adam’s ‘relatively modest’ success, the Court’s provisional view was that Heather should pay half of Adam’s costs on the standard basis, and that Adam should pay Heather’s costs, if any, thrown away by virtue of the late amendment to his application for leave to appeal.[2]
[2]Ibid [105].
The parties subsequently filed short written submissions. They are in agreement that Adam should pay Heather’s costs (if any) thrown away by virtue of the amendment to his application for leave to appeal. The parties also agree that Heather should be granted an indemnity certificate in respect of her costs of the appeal under s 4 of the Appeal Costs Act 1998. The parties are otherwise in dispute.

Costs of the trial

It is convenient to deal with…

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 McFarlane v McFarlane [No 2]

Details

AGLC: McFarlane v McFarlane [No 2] [2025] VSCA 187
Case: [2025] VSCA 187
Decision Date: 19 August 2025

CaseChat Overview and Summary

The case of McFarlane v McFarlane [No 2] involved a dispute over family provision claims in the Family Court of Australia. The plaintiff, McFarlane, sought an order for family provision from the estate of her deceased husband. The dispute centred on the valuation of property and the amount of the provision McFarlane should receive. The trial judge had refused McFarlane's application for family provision, but the appeal to the Full Court resulted in an order for provision being made in an amount substantially less than what McFarlane had initially sought. The primary issue before the court was whether the modest success achieved by McFarlane and the valuation dispute justified an order that the defendant pay only half of McFarlane's costs.

The court considered the principles governing costs in family law matters, particularly focusing on the success achieved by the parties and the nature of the disputes. The Full Court noted that McFarlane had successfully invoked the court's jurisdiction and there had been no offer of compromise for the relevant amount. Additionally, both parties had taken a robust approach to the valuation dispute, which ultimately did not significantly impact the disposition of the case. The court held that there was no basis for departing from the usual order for costs in family law matters, which typically requires the losing party to pay the winner's costs.

In light of the above, the Full Court affirmed the trial judge's order that the defendant pay McFarlane's costs of the appeal. The court emphasised that the appellant had succeeded on a fundamental issue, namely that the testator had failed to discharge his moral duty. Despite several grounds of appeal being unsuccessful, the court determined that the costs should be decided according to the overall issues in the appeal rather than the specific grounds. Consequently, the usual order for costs in family law matters was deemed appropriate.

The final orders of the court were that the defendant was to pay McFarlane's costs of the appeal on the usual terms, reflecting the modest success achieved and the nature of the disputes.

Orders