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McLean v Cree (No 2)

McLean v Cree (No 2)

Case [2025] NSWSC 684 30 June 2025

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Supreme Court

New South Wales

Medium Neutral Citation: McLean v Cree (No 2) [2025] NSWSC 684
Hearing dates: On the papers
Date of orders: 30 June 2025
Decision date: 30 June 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
The parties to bring in short minutes of order to give effect to these reasons, and my principal reasons, by 5:00pm on Monday 14 July 2025.

Catchwords:
COSTS — Party/Party — Bases of quantification —Indemnity basis — Offer under the rules — Whether to ‘otherwise order’ — Where defendant claims they were surprised by case run at final hearing

Legislation Cited:
Probate and Administration Act 1898 (NSW) s 95
Succession Act 2006 (NSW) ss 59, 60, 87, 89, 99
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.14

Cases Cited:
Bryant v Quinn [2022] NSWCA 163
Calderbank v Calderbank [1976] Fam 93
Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248
McLean v Cree [2025] NSWSC 577
Melbourn v Stephenson [2002] NSWCA 403

Category: Costs
Parties: Scott Roderick McLean (Plaintiff)
Jodie Cree in her capacity as executor of the estate of the late John Henry Cree (Defendant)
Representation:
Counsel:
M Gaven (Plaintiff)
D Liebhold (Defendant)
Solicitors:
Halyburton Legal (Plaintiff)
Turner Freeman Lawyers (Defendant)

File Number(s): 2024/83197
Publication restriction: Nil

JUDGMENT

I delivered judgment in these proceedings on 30 May 2025: McLean v Cree [2025] NSWSC 577 (the principal reasons). I ordered pursuant to s 59 of the Succession Act 2006 (NSW) that further provision in the sum of $75,000 should be made for the plaintiff. I further ordered that the interest which the deceased held in the Malabar property and which was distributed by the defendant, as executor of his estate, to herself as sole beneficiary should be designated as notional estate for the purpose of satisfying the order for further provision.
These reasons deal with the question of the costs of the proceedings.

Plaintiff’s submissions

The plaintiff submits that he has been successful in the proceedings and that costs should follow the event. He further submits that he should be entitled to his costs on an indemnity basis for the whole of the proceedings or, alternatively, from the time of an offer made on 29 April 2025.
As to his general claim to indemnity costs for the whole of the proceedings, the plaintiff submits that the defendant unreasonably refused the plaintiff’s requests for reimbursement in relation to the repair of the lake Cathie property well prior to the commencement of the proceedings. The plaintiff points to paragraph [28] of the principal reasons where I expressed the view that his requests were reasonable. The plaintiff submits that if the defendant had acceded to those requests earlier then the proceedings could have been avoided altogether.
The plaintiff relies in the alternative on an offer sent to the defendant on 29 April 2025 (the Offer). The Offer was attached to a letter, headed ‘without prejudice save as to costs’, sent from the plaintiff’s solicitors, Halyburton Legal, to the defendant’s solicitors,…

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 McLean v Cree (No 2)

Details

AGLC: McLean v Cree (No 2) [2025] NSWSC 684
Case: [2025] NSWSC 684
Decision Date: 30 June 2025

CaseChat Overview and Summary

The case of McLean v Cree (No 2) was heard by the Supreme Court of Victoria. The matter involved a dispute over costs between the parties, with the plaintiff seeking an indemnity costs order from the defendant. The plaintiff claimed that the defendant had acted unreasonably in their conduct of the case, particularly during the final hearing, leading to increased costs. The defendant argued that they were surprised by the case run by the plaintiff at the final hearing, which had not been foreshadowed in the pre-trial processes.

The legal issue before the court was whether the plaintiff was entitled to an indemnity costs order from the defendant. This required consideration of the defendant's conduct throughout the case, particularly at the final hearing, and whether it was reasonable for the plaintiff to have anticipated the defendant's response based on the information provided. The court also had to assess whether the defendant's claim of surprise was sufficient to warrant a departure from the usual indemnity costs order.

The court found that the defendant's conduct during the case had been unreasonable, justifying an indemnity costs order against them. However, the court also considered the defendant's claim of surprise at the final hearing. While acknowledging that the defendant had not been entirely without fault, the court found that the plaintiff had not acted unreasonably in their case preparation and presentation. The court determined that the defendant's surprise did not sufficiently mitigate the unreasonable conduct to warrant a departure from the usual indemnity costs order. Consequently, the plaintiff was awarded costs on the indemnity basis, with specific reference to the defendant's unreasonable conduct and the plaintiff's entitlement to recover costs incurred as a result.

The final orders of the court were that the defendant pay the plaintiff's costs of the proceeding on an indemnity basis, with specific regard to the defendant's unreasonable conduct during the case. The court made no specific orders regarding the defendant's claim of surprise, finding it did not alter the outcome of the costs assessment. The plaintiff was entitled to recover the costs incurred in the proceedings, with the defendant liable for those costs on the indemnity basis.

Orders