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Oates v Oates (No 2)

Oates v Oates (No 2)

Case [2025] NSWSC 929 15 August 2025

Costs

Calderbank Offer

Unconscionable Conduct

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Oates v Oates (No 2) [2025] NSWSC 929
Hearing dates: On the papers
Date of orders: 15 August 2025
Decision date: 15 August 2025
Jurisdiction: Equity
Before: Brereton J
Decision:
The parties are to confer about the form of final orders that will dispose of the proceedings and give effect to these reasons and are to notify my Associate as to the outcome of that conferral by 5pm on 22 August 2025.

Catchwords:
COSTS – party/party – where plaintiff successful in obtaining family provision orders – general rule that costs follow the event pursuant to UCPR r 42.1 – where defendant made an offer of compromise and a Calderbank offer in the alternative – where plaintiff submitted terms of the offers were unclear and ambiguous – where plaintiff submitted it was uncertain whether he had “beaten” defendant’s offers – where defendant’s offer of compromise fails to comply with UCPR r 20.26 – where it was unreasonable for plaintiff to reject defendant’s Calderbank offer – where defendant is to pay plaintiff’s costs up to date of the Calderbank offer on the ordinary basis – parties to bear their own costs after this period – defendant’s application for indemnity costs unsuccessful – plaintiff’s application for all his costs unsuccessful

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
AAI Ltd v Josipovic (No 2) [2013] NSWSC 1577
Alexiou v Alexiou [2024] NSWSC 1340
Berry v Nicholls [2016] NSWCA 272
Brian John Harris v Mark Harris (No 2) [2013] NSWSC 1157
Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Coregas Pty Ltd v Penford Australia Pty Ltd (No 2) [2013] NSWCA 11
Estate of May Berry, deceased [2016] NSWSC 130
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Knox v Peacock (No 2) [2024] NSWSC 1372
Le v Angius; Angius v Angius (No 2) [2024] NSWSC 1417
Leichhardt Municipal Council v Green [2004] NSWCA 341
Liosatos v Liosatos [2025] NSWSC 44
Oates v Oates [2025] NSWSC 548
Pethers v Pethers (No 2) [2025] NSWSC 561
Scott v Scott (No 2) [2022] NSWSC 914
Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003
Singer v Berghouse [1993] HCA 35; 114 ALR 521
Wild v Meduri; Meduri v Neal; Meduri v Meduri No 2 [2023] NSWSC 669

Texts Cited:
Nil

Category: Costs
Parties: Aaron Tasman Oates (plaintiff)
Jan Maree Oates (defendant)
Representation:
Counsel:
AF Stevens (plaintiff)
R Bianchi (defendant)
Solicitors:
Aubrey Brown Lawyers (plaintiff)
Ryan & Ryan Lawyers (defendant)

File Number(s): 2023/285256
Publication restriction: Nil

JUDGMENT

I delivered judgment in these proceedings on 29 May 2025: see Oates v Oates [2025] NSWSC 548. These reasons assume familiarity with my earlier reasons.
I have not made final orders. I indicated at [137] of my earlier reasons that I would provide an outline 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 Oates v Oates (No 2)

Details

AGLC: Oates v Oates (No 2) [2025] NSWSC 929
Case: [2025] NSWSC 929
Decision Date: 15 August 2025

CaseChat Overview and Summary

In the matter of Oates v Oates (No 2), the plaintiff sought family provision orders against the defendant, which he successfully obtained. The dispute was heard in the Family Court of Australia. The central legal issue revolved around the costs associated with the proceedings, particularly in light of the defendant’s offer of compromise and a Calderbank offer. The plaintiff argued that the terms of these offers were unclear and ambiguous, leading to uncertainty about whether he had "beaten" the defendant's offers. Moreover, the plaintiff claimed that the defendant's offer of compromise did not comply with the relevant rules, making it unreasonable for him to reject the Calderbank offer.

The court examined the general principle that costs follow the event, as stipulated in UCPR rule 42.1. It found that the defendant's offer of compromise was flawed as it did not adhere to UCPR rule 20.26. Consequently, the court determined that the plaintiff's rejection of the Calderbank offer was unreasonable. As a result, the defendant was ordered to pay the plaintiff's costs up until the date of the Calderbank offer on the ordinary basis. From that point onwards, both parties were required to bear their own costs. The defendant's application for indemnity costs was dismissed, and the plaintiff's application for all his costs was also unsuccessful.

The court's decision underscores the importance of clarity and compliance in offers of compromise and Calderbank offers. It highlights that while the plaintiff was successful in obtaining family provision orders, he was not entitled to all of his costs due to the unreasonable rejection of a valid Calderbank offer. The outcome reflects the balance between the need to encourage settlement and the protection of a plaintiff's right to seek just compensation for their litigation efforts.

Orders