MacAlpine v MacAlpine (No 2) [2020] NSWSC 1003

MacAlpine v MacAlpine (No 2) [2020] NSWSC 1003

There was no justification for departing from the principle that costs follow the event because the plaintiff was financially able to meet the costs and the deceased was not properly regarded as the cause of the litigation. The plaintiff's rejection of the defendant's September 2019 Calderbank offer was objectively unreasonable because the parties were actively exchanging settlement offers, the offer would have left the plaintiff with a significant sum in hand, and the plaintiff's claim failed for reasons foreshadowed in the offer letter. The plaintiff was therefore ordered to pay the defendant's costs on the ordinary basis up to and including 2 October 2019 and on an indemnity basis...

Jurisdiction
Australia
Judgment Date
31 July 2020
Procedural Posture
Costs in Family Provision Proceedings / Costs Determination After Dismissal of the Plaintiff's Family Provision Application
Outcome
The plaintiff was ordered to pay the defendant's costs of the proceedings on the ordinary basis up to and including 2 October 2019 and thereafter on an indemnity basis.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offer' 'unsuccessful Family Provision Claim']
['costs' 'succession' 'family Provision'] ['party/party Costs' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offer' 'unsuccessful Family Provision Claim']

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Procedural Posture

Costs in Family Provision Proceedings / Costs Determination After Dismissal of the Plaintiff's Family Provision Application

Legal Issues

  1. 1 ['Whether no order as to costs should be made against the unsuccessful plaintiff, with the defendant left to take costs out of the estate, instead of costs following the event.' "Whether the defendant's costs should be awarded on an indemnity basis because the plaintiff rejected Calderbank offers that were more favourable than the ultimate result."]

Ratio Decidendi

There was no justification for departing from the principle that costs follow the event because the plaintiff was financially able to meet the costs and the deceased was not properly regarded as the cause of the litigation. The plaintiff's rejection of the defendant's September 2019 Calderbank offer was objectively unreasonable because the parties were actively exchanging settlement offers, the offer would have left the plaintiff with a significant sum in hand, and the plaintiff's claim failed for reasons foreshadowed in the offer letter. The plaintiff was therefore ordered to pay the defendant's costs on the ordinary basis up to and including 2 October 2019 and on an indemnity basis...

Court Disposition

The plaintiff was ordered to pay the defendant's costs of the proceedings on the ordinary basis up to and including 2 October 2019 and thereafter on an indemnity basis.

Orders

  • ["Order that the plaintiff pay the defendant's costs of the proceedings on the ordinary basis up to and including 2 October 2019 and thereafter on an indemnity basis."]